As the Supreme Court considers a crucial wetlands determination case under the Clean Water Act, Republican senators joined agricultural groups in requesting the Environmental Protection Agency and Army Corps of Engineers suspend their rulemaking to redefine the scope of waters protected under the Clean Water Act.
Earlier this month, the Supreme Court decided to take up the case of Sackett vs. EPA to determine whether the 9th Circuit used the proper tests in determining whether wetlands were waters of the United States under the Clean Water Act. In Idaho, the Sackett couple was told they needed a CWA permit to build a home on their private property, even though the lot they were building on lacked a surface water connection to any stream, creek, lake or other water body.
The senators argue that it would be irresponsible for EPA and USACE to proceed with a rulemaking that could be invalidated or significantly altered as early as this summer. The letter also criticizes how the regulatory overreach proposed by the rule would “snarl American economic sectors in red tape” and impose significant uncertainty on a range of stakeholders, especially farmers and ranchers.
“The federal government should not promulgate rules for the sake of political expediency, but rather provide regulatory certainty for stakeholders within the bounds of an agency’s respective statutory authority,” the senators write. “Proceeding with the rulemaking at this time, despite the pending litigation and potentially influential ruling, will only deepen uncertainty within the regulated community.”
In Nov. 2021, the EPA and Army Corps of Engineers announced their proposal to repeal and replace the Navigable Waters Protection Rule. As the agencies move forward, they are seeking public comment on their latest step, which is set to close on Feb. 7. The senators are asking EPA to suspend the WOTUS rulemaking, or at least extend the comment period for the proposed rule published, until at least 60 days after the Supreme Court decides Sackett.
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“We are foremost troubled to see that the proposed rule exceeds the regulatory authority granted to EPA and USACE by the Clean Water Act,” the senators continue. “The proposed rule seeks to federalize waters in a land grab that arguably surpasses its 2015 predecessor, improperly encompassing water features traditionally within the sole purview of states, while reverting from the comparative straightforward application of the 2020 Navigable Waters Protection Rule … and interjecting new uncertainties for nearly every private sector stakeholder.”
In relying on the ambiguous “significant nexus” standard, the proposed WOTUS rule will subject water features not addressed by the mere two categorical exclusions of waste treatment systems and prior converted cropland (a term which is problematically left undefined in the rule) to costly and time-consuming processes to determine whether those features, such as ditches or other ephemeral waters, cause more than speculative or insubstantial effects on the chemical, physical or biological integrity of the nation’s waters, the Republicans add.
“The limited exclusions and lack of clarity, such as for ditches, prairie potholes, and stock ponds, as well as the failure to define prior converted cropland, are leading concerns for our constituent stakeholders,” the senators add.
Farmer groups also concerned
The calls for a pause also echo those from farmer stakeholder groups.
“Farmers are frustrated with the back and forth on water regulations,” says Zippy Duvall, president of the American Farm Bureau Federation. “We finally had clarity with the Navigable Waters Protection Rule, but the definition of ‘Waters of the U.S.’ now faces more uncertainty. Farmers are deliberate in how they use resources and continued indecision makes it difficult to plan and grow the food America’s families rely on. We urge the Biden administration to pause its plan to write a new WOTUS rule until the Supreme Court provides more guidance on which waters fall under federal jurisdiction.”
“For years, cattle producers have faced ever-shifting WOTUS definitions, leaving farmers and ranchers wondering if a water feature on their property might suddenly fall under federal jurisdiction,” says Scott Yager, chief environmental counsel at National Cattleman’s Beef Association. “With the Supreme Court set to hear a case on WOTUS, cattle producers stand united in urging the Biden administration to suspend further WOTUS rulemaking until the outcome of the case is clear.”