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Romney Joins Entire Senate Republican Conference in Fight to Stop Resurrection of Biden-Obama WOTUS Overreach

Letter to EPA, USACE calls for a halt to rulemaking until Supreme Court decision

WASHINGTON—U.S. Senator Mitt Romney (R-UT) joined his Senate Republican colleagues, led by Senator John Thune (R-SD), in urging the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to suspend the pending rulemaking to redefine the scope of waters protected under the Clean Water Act (CWA), specifically “waters of the United States” (WOTUS), until the U.S. Supreme Court completes its consideration of Sackett v. EPA, a case that is expected to have major implications on CWA scope and enforcement.

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 to 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 wrote. “Proceeding with the rulemaking at this time, despite the pending litigation and potentially influential ruling, will only deepen uncertainty within the regulated community.”

“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.”

“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. NCBA thanks Senator Thune for encouraging the EPA to pause their rulemaking and avoid even more confusing regulations on producers.”

“The National Stone, Sand & Gravel Association applauds Senator Thune and all the senators for their leadership to ensure our industry faces workable and reliable water regulations,” said Austin Bone, director of government affairs at National Stone, Sand, and Gravel Association. “We support their call on the Environmental Protection Agency and U.S. Army Corps of Engineers to delay the current Clean Water Act rulemaking until the Supreme Court has the opportunity to finish its deliberation on a case that will impact the agencies’ actions and likely force them to write another rule. Aggregates producers, who are facing their fourth change to these critical regulations in the past decade, crave certainty, as we work to supply the nation with building materials to better our infrastructure. We call on EPA and the U.S. Army Corps of Engineers to heed the calls of Senator Thune and all the senators who signed today’s letter to ensure our businesses are able to continue working to help build America.”

The full text of the letter can be found below and here.

Dear Administrator Regan and Assistant Secretary Connor:

We write to request that the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) suspend the pending rulemaking to redefine the scope of waters protected under the Clean Water Act, specifically “waters of the United States” (WOTUS), until the U.S. Supreme Court completes its consideration of Sackett v. EPA, Case No. 21-454.  As you know, this case may have major implications for Clean Water Act scope and enforcement.  It would be irresponsible for EPA and USACE to proceed down a regulatory path that could be invalidated or significantly altered as early as this summer.

More critically, suspending the rulemaking will permit stakeholders across the country to evaluate how a potential decision will affect their position in this regulatory space.  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.  Proceeding with the rulemaking at this time, despite the pending litigation and potentially influential ruling, will only deepen uncertainty within the regulated community.  We therefore urge EPA and USACE to suspend the WOTUS rulemaking, or at least extend the comment period for the proposed rule published at 86 Fed. Reg. 69372 (Dec. 1, 2021), until at least 60 days after the Supreme Court decides Sackett.

In addition to submitting this request, we also write to comment on the WOTUS rule as it is currently proposed.  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 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, 85 Fed. Reg. 22250 (Apr. 21, 2020), 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 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.

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.

As you consider our request to suspend the WOTUS rulemaking process, we urge you to listen to these stakeholders and hear firsthand how the proposed revision to the definition of WOTUS will cast a cloud of uncertainty over landowners across the country and snarl American economic sectors in red tape. 

Thank you for your prompt consideration of our request.