WASHINGTON– U.S. Senators Roger Wicker, R-Miss., and Cindy Hyde-Smith, R-Miss., as part of a united Senate Republican Conference, are urging two federal agencies to suspend a pending rulemaking the jurisdictional definition of “waters of the United States” (WOTUS), until the U.S. Supreme Court completes consideration of a case that could have major implications on the scope and enforcement of the Clean Water Act (CWA).
In a letter to the heads of the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), all 50 Republican Senators argue that it would be irresponsible to proceed with a rulemaking that could be invalidated or significantly altered as early as this summer with a Supreme Court decision in Sackett v. EPA.
“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 wrote. “Proceeding with the rulemaking at this time, despite the pending litigation and potentially influential ruling, will only deepen uncertainty within the regulated community.”
The Senators also aired concerns that the pending rulemaking would restore and expand the Obama-era WOTUS rule that extended CWA coverage to, among other things, agricultural and roadside ditches, prior converted cropland, and storm water control projects.
“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 continued. “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.”
“Given the severe financial penalties stakeholders could face for conducting standard agricultural or other land development practices under the proposed rule, family farmers and ranchers are understandably alarmed by the administration’s attempted land grab. These producers have an especially vested interest in responsible stewardship of their water and land, and they depend on precise, consistent, and durable regulations that can guide such activity. Unfortunately, the proposed WOTUS rule falls short by each measure,” the Senators said.
“Farmers are frustrated with the back and forth on water regulations,” said 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,” said 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.”
Wicker and Hyde-Smith are original cosponsors of U.S. Senator Shelley Moore Capito’s , R-W.Va., Navigable Waters Protection Act (S.2567), which would codify the 2020 Navigable Waters Protection Rule developed during the Trump administration.
U.S. Senator John Thune, R-S.D., led the letter to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor. Click here to read the letter.