EPA soliciting input for WOTUS rulemaking

House members file WOTUS amicus brief in favor of private landowners in Sackett vs. EPA.

Jacqui Fatka, Policy editor

April 18, 2022

3 Min Read
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While testifying before a Senate committee recently, Environmental Protection Agency Administrator Michael Reagan says EPA will continue its rulemaking process as the Supreme Court decides on the fate of the current definition of the waters of the U.S.

“We are currently continuing our roundtable discussions with our farmers and elected agricultural officials,” Reagan says. Although the agency is still dealing with some uncertainty in terms of courts’ decisions, Reagan says EPA is taking into consideration many of the concerns in the agricultural community as well as those on the other side of the issue.

“We’re still on a path to produce some certainty while we see what plays out with the Supreme Court,” explains Reagan.

The Sackett case is expected to be heard in October, and Reagan stopped short of promising that EPA would not release a rule ahead of the court hearing.

Courtney Briggs, American Farm Bureau Federation senior director of congressional relations, says EPA has reached out to Farm Bureau members to participate in regional roundtables planned for May and June. Three state Farm Bureaus are leading panels at different regional roundtables.

“Those roundtables are designed to talk about implementation concerns across various regions,” she says. The roundtables are designed to offer different viewpoints from all those coming together to discuss implementation including someone from agriculture, environmental justice, environment, non-government organization, construction/development and municipalities.

WOTUS amicus brief filed by House members

Western Caucus Chairman Rep. Dan Newhouse, R-Wash., and Reps. Mariannette Miller-Meeks, R-Iowa, and Rodney Davis, R-Ill., submitted an amicus brief for the upcoming U.S. Supreme Court case, Sackett v. EPA, which could set forth the proper test for determining the definition of “waters of the United States” under the Clean Water Act. A total of 64 Congressional Western Caucus Members were also amongst the 155 House Republicans and 46 senators who filed another amicus brief in support of the petitioners in the pending U.S. Supreme Court case, Sackett v. Environmental Protection Agency (Sackett).

“If allowed to stand, the Ninth Circuit’s decision will harm each of those interests. It will allow a federal agency to make every puddle, ditch, and creek in the United States subject to overbearing regulation. This Court should reject that outcome as inconsistent with the relevant statutory text and reverse the decision below,” says the brief.

“Confusion, unpredictability, and litigation have surrounded the scope of federal authority of our nation’s navigable waterways for decades, and as our amicus brief states, Congress never intended to give the EPA jurisdiction over every ditch, puddle, or stream,” add the lawmakers. “As members of the Congressional Western Caucus and representatives of rural America, we understand that our communities are committed to clean water and conservation, protecting private property, and land-use rights guaranteed by the Constitution. Farmers, ranchers, small business owners, and landowners deserve certainty, and it is our hope that the Supreme Court will finally put an end to this regulatory confusion.”
The amicus brief outlines the importance of environmental federalism and how a poorly-defined Clean Water Act hinders environmental protection by interfering with more effective state, local, and private action. As the brief states, “Simply put, the incredible ecological variety throughout the nation makes one-size-fits-all national environmental regulation unworkable,” and “environmental protection and conservation remain core, traditional areas of state and local regulation.”

The brief also provides a legislative history and analysis of congressional intent: “The Clean Water Act’s history confirms what its text makes clear: Congress did not give EPA power to regulate land like the Sacketts’ under the Act’s permit provisions.”

On March 9, Newhouse, Transportation and Infrastructure Ranking Member Sam Graves, R-Mo., and Water Resources and Environment Subcommittee Ranking Member David Rouzer, R-N.C., led over 200 House Republicans – including every member of the Western Caucus – in calling for the Biden administration to drop its plan to expand the scope of “waters of the United States” until Sackett v. EPA is decided by the Supreme Court.

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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