September 7th, 2024 by WCBC Radio

West Virginia Attorney General Patrick Morrisey on Friday led a coalition of 24 states in a letter to Congress offering the states’ “experiences and perspectives” regarding the implementation of the U.S. Environmental Protection Agency of Waters of the United States (WOTUS) “conformed” rule. The House subcommittee on Water Resources and Environment has scheduled a hearing next week: Waters of the United States Implementation Post-Sackett [v. Environmental Protection Agency] Decision: Experiences and Perspectives.

In 2023, the Attorney General led a 26-state coalition in an amicus brief to the Supreme Court in support of the petitioners, Michael and Chantell Sackett.

In May 2023, the Supreme Court rejected federal agencies’ approach on WOTUS, explaining that their understanding was “inconsistent with the text and structure of the” Clean Water Act. The court also rejected the EPA’s request for deference to the agencies’ misguided rule.

“But even after the U.S. Supreme Court clarified how far the federal government’s regulatory reach extends over rivers, lakes, streams, pools of water, wetlands and more, the federal agencies continued to run amok and issued a conforming rule, leaving most everything intact as far as the original rule is concerned,” Attorney General Morrisey said, writing in the letter that “The States take seriously their responsibility to act as stewards of these vital resources. Protection against water pollution is important. But Congress has spoken to how it wants to tackle that problem; the Supreme Court has placed signposts, too. The Agencies cannot defiantly insist on going their own way.”

“The Supreme Court issued a clearer definition for Waters of the United States and basically ruled that state lands and waters are less subject to the whims of unelected bureaucrats,” Attorney General Morrisey said, writing in the letter that the agencies, just a few months after Sackett, “issued a terse ‘conforming’ rule—without notice and comment—that made only a handful of changes to the prior rule that the Supreme Court had so directly condemned.”

The letter lists how the EPA and its co-implementing agency, the U.S. Army Corps of Engineers, purportedly “conformed” to the Supreme Court ruling, but in reality has remained inconsistent with Sackett in several important ways. It also outlines the EPA’s “continued unwillingness to meaningfully apply Sackett’s requirements has led to problems on the ground.”

Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Wyoming joined the West Virginia-led letter.