Bound by a recent Supreme Court decision, a new Biden administration rule weakens Clean Water Act protections for millions of acres of wetlands.
By Alexandra Jones, Courthouse News Service
Keeping pace with a spring Supreme Court decision that slashed protections for U.S. wetlands, the Environmental Protection Agency issued a new rule Tuesday that could cut federally protected waters by more than half.
“We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling,” EPA administrator Michael Regan indicated in a statement Tuesday announcing the new Waters of the United States rule.
While Regan said he was disappointed with the high court’s ruling, he indicated that the agency’s hands were tied and that it must weaken wetland protections to enforce the court’s decision.
“EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and tribes protect the clean water upon which we all depend,” Regan said. The new rule reduces protections for millions of acres of wetlands and mandates protections for only those that have a clear link to oceans and rivers.
The relevant high court judgment in favor of property owners Chantell and Michael Sackett was unanimous, bringing the couple’s 17 years of litigation against the EPA over Clean Water Act permit fines to a close.
The case stems from the Sacketts’ 2004 purchase of land connected indirectly to the popular Idaho tourist destination Priest Lake. Having started construction for a lake house on the land without a permit under the Clean Water Act, the Sacketts litigated to have a court absolve them of fines up to $40,000 a day — asking courts to find that their property did not meet the standard for water that the EPA can regulate since it is only connected to the lake via a “shallow subsurface flow.”
Because the plot used to be part of a larger complex that drained directly into the lake, their case presented the question of whether the Clean Water Act applies to subsurface flow or only continuous surface connection to navigable water.
Under the Clean Water Act, the EPA is allowed to regulate “waters of the United States.” And while the lake itself clearly falls under EPA authority, it was less clear whether the Clean Water Act applied to subsurface flow or only continuous surface connection to navigable water.
The Army Corps of Engineers had previously defined waters of the United States as navigable waters — including wetlands adjacent to these waters — in its regulations. But this spring, the high court offered a new definition.
Justice Samuel Alito wrote for the court that “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,’ so that they are ‘indistinguishable’ from those waters.”
The court found subsequently that the wetlands on the Sacketts’ property did not fall under the Clean Water Act’s protections.
While the justices agreed the Sacketts should win their fight against the EPA’s regulation, they were divided on how.
Alito’s opinion was joined by Justices Clarence Thomas, John Roberts, Neil Gorsuch, and Amy Coney Barrett.
Conservative Justice Brett Kavanaugh — joined by liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — wrote a separate opinion, agreeing with the judgment but not Alito’s reasoning. Kavanaugh said he disagreed with the new test for categorizing wetlands under the Clean Water Act, accusing the majority of having “rewritten” the law.
“By narrowing the act’s coverage of wetlands to only adjoining wetlands, the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” the Donald Trump appointee wrote.
Tuesday’s new rule has already drawn criticism from environmental groups as well as a coalition of small businesses, farmers, and energy producers.
Jim Murphy, the National Wildlife Federation’s director of legal advocacy, said in a statement that the Sackett decision undermines the federal government’s authority to protect wetlands that are responsible for filtering drinking water, absorbing floods, and providing habitat for wildlife.
“Congress needs to step up to protect the water we drink, our wildlife, and our way of life. In the meantime, it will be up to the states to fill the gaping hole in water protections created by the Supreme Court,” Murphy said.
Courtney Briggs, Waters Advocacy Coalition chair, criticized the revised rule for lack of a public comment period. The agency’s rule will take effect immediately, the EPA said.
“The agencies blocked public input and engagement in the revision process. This is unfortunate as clean water is a public health and economic priority for our nation’s businesses, their employees, customers and the communities in which they operate,” Briggs said on behalf of the coalition.
The Biden administration’s new rule will allow the U.S. Army Corps of Engineers to resume jurisdictional determinations that had been put on hold following the high court’s decision, according to a statement by Michael Connor, assistant secretary of the Army for Civil Works.
This article was first published on Courthouse News Service.
