February 17, 2022
UEP called on US EPA to delay further action on its proposed Waters of the US (WOTUS) rulemaking in comments submitted with other agricultural and industry organizations. The proposed rule formally withdraws the Trump-era Navigable Waters Protection Rule and temporarily puts in its place an aggressively modified version of the pre-2015 WOTUS rules and guidance. With that temporary rule in place, EPA would then turn to a second round of rulemaking to create what it intends to be a new, durable WOTUS definition that leads to less confusion and greater clarity for the regulated public.
UEP commented that moving forward with this interim WOTUS rule makes little sense since the Supreme Court will hear the Sackett case and decide either later this year or in early 2023. The question before the court is a challenge to how EPA uses the concept of “significant nexus” when making a jurisdictional determination. Significant nexus is EPA’s foundation for the proposed temporary WOTUS definition that they issued for comment late last year. It would also be central to the so-called “more durable” WOTUS rule it would subsequently develop.
As noted in the comments of the Waters Advocacy Coalition, “There is no sense in rushing through a rulemaking proceeding that codifies a standard that the Supreme Court could change or foreclose altogether.” Fifty US Senators sent EPA a letter on February 3, led by Senator Thune of South Dakota, echoing these concerns. That letter stated that “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.” Please contact UEP with any questions.
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