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Pending Supreme Court case poses risk to Clean Water Act, senators urge administration to halt rulemaking

Sarah Motter | WIBW

TOPEKA, Kan. (WIBW) - A pending case in the Supreme Court could have significant impacts on legislation meant to govern clean water and a group of senators has called on the Biden Administration to halt current rulemaking until the case is decided.

U.S. Senator Jerry Moran (R-Kan.) says he joined the entire Senate Republican Conference - led by Sen. John Thune (R-S.D.) - to urge the Environmental Protection Agency and the U.S. Army Corps of Engineers to suspend rulemaking to redefine the scope of waters protected under the Clean Water Act.

Specifically, Moran said they called for the suspension regarding “waters of the United States” until the Supreme Court can complete consideration of Sackett v. EPAa case expected to have major implications on the scope and enforcement of the CWA.

“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 argued the move would be irresponsible for the EPA and USACE and could invalidate or significantly alter rules made as early as the summer of 2022.

“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.”

The senators also criticized how regulatory overreach proposed by the rule would “snarl American economic sectors in red tape” and create uncertainty for stakeholders, especially Kansas’s farmers and ranchers.

“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.”