EPA’s new rule could strip protections from more than half of U.S. wetlands
The agency finalized the new regulation to reflect a U.S. Supreme Court decision earlier this year
The Environmental Protection Agency said Tuesday it has revised a key rule to comply with a sweeping U.S. Supreme Court ruling from earlier this year, which could strip federal protections from up to 63 percent of the nation’s wetlands.
In a final rule issued Tuesday, the EPA and the Department of the Army changed parts of the previous definition of “waters of the United States” to align with the Supreme Court’s decision, which weakened the federal agency’s power to regulate the nation’s waterways.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” EPA Administrator Michael Regan said in a news release Tuesday.
As a result of the decision, several types of waters will no longer be under federal protection, an EPA official said. Up to 63 percent of wetlands by acreage could be affected in addition to an estimated 1.2 million to 4.9 million miles of ephemeral streams, the official said.
The issue Sackett v. EPA brought before the Supreme Court was the scope of the Clean Water Act’s reach and how courts should determine what counts as “waters of the United States” under protection of the law. Nearly two decades ago, the court ruled that wetlands are protected if they have a “significant nexus” to nearby regulated waters.
In May, however, the court decided that rule no longer applies and said the EPA’s interpretation of its powers went too far, giving it regulatory power beyond what Congress had authorized.
Writing for five justices of the court, Justice Samuel A. Alito ruled that the Clean Water Act extends only to “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.” He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.
The EPA said the amendments announced Tuesday are limited and only change the parts of the previous rule that are invalid under the court’s decision. For example, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected, according to the agency.
“The exclusive purpose of the 2023 Rule was to define ‘waters of the United States,’ and this rule simply conforms that definition to Sackett,” the text of the final rule states.
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