WASHINGTON – The Biden administration has weakened regulations protecting millions acres of wetlands, saying that it was forced to do so after the Supreme Court severely limited the federal government’s jurisdiction over them.
The rule would require wetlands to be clearly connected with other waters such as oceans and rivers. This policy shift departs a half century of federal rules that govern the nation’s riverways.
Michael Regan, the administrator of the Environmental Protection Agency (EPA), said that the agency was left with no choice after the Supreme Court severely limited the federal government’s ability to regulate wetlands without a “continuous connection to larger bodies of water.”
In a ruling handed down in May, the justices upheld property rights over concerns for clean water. The couple from Idaho wanted to build a home near a lake. Chantell and Michael Sackett objected to federal officials’ requirement that they obtain a permit prior to filling a part of their property with soil and rocks.
This was the second time in the last five years that a conservative majority of the High Court has narrowed environmental regulation.
Regan, in a Tuesday statement, said that while he was disappointed with the Supreme Court decision in the Sackett Case, EPA and Army Corps of Engineers have a duty to implement this decision along with our state co-regulators.
The new rule announced on Tuesday is a revision of a rule finalized earlier in the year that regulated “waters of United States.” Developers, agriculture groups, and others have been trying to limit federal power to use Clean Water Act regulations to control waterways. They argue the law should only cover certain types of rivers and streams, and wetlands. Environmental groups have long sought a more expansive definition of water that protects more waters.
The new rule, which is very unusual, responds directly to the Supreme Court’s ruling in the Sackett Case. A rule is usually proposed, then the public has a chance to comment, and finally the federal government releases the final version. This rule is final and changes the existing policy in order to be consistent with a recent Supreme Court ruling.
The Supreme Court’s ruling is a victory for developers and agriculture groups. The ruling stated that federally protected wetland must be adjacent to “relatively” permanent waterways “connected to traditional intrastate navigable waters”, such as a river or an ocean.
Justice Samuel Alito added that they must also have a “continuous connection to the surface of this water”.
The court’s ruling broke from a 2006 opinion of former Justice Anthony Kennedy, who said that wetlands are regulated only if they have a “significant connection” with larger bodies. This was the standard used to determine whether developers required a permit in order to discharge into wetlands. The standard was criticized for being vague, difficult to interpret, and in general unworkable by opponents.
Justice Elena Kagan wrote that in her dissent, the majority’s ruling was political and weakened the regulatory powers Congress granted to the federal government.
The new rule, published Tuesday, removes “significant nexus test” from consideration in determining tributaries and waters that are federally protected.
In a Tuesday statement, the EPA stated that the Supreme Court’s ruling had “created uncertainty regarding Clean Water Act implementation”. The Biden administration released the amended rule to “provide clarity and a pathway forward consistent with (the Supreme Court’s) ruling”,” according to the agency.
The EPA stated that the new rule would take immediate effect because it is the only purpose of the rule, which is to amend certain provisions of the old rule that have been declared invalid by the Supreme Court.
Michael Connor said the Army Corps would resume issuing decisions on jurisdictions that had been paused since the Sackett ruling. In a press release, Connor said that the Corps would continue to restore and protect the nation’s waterways in order to support jobs and healthy communities.
The Biden administration finalized their regulations in December, basing them off definitions that were in place before 2015 and which federal officials hoped would be durable enough to withstand a legal challenge. The regulations protected small streams, wetlands, and other waterways and repealed an Obama-era rule which environmentalists claimed left too many unregulated.
The power of the Clean Water Act varies dramatically depending on which political party is in charge at the White House. The Obama administration tried to expand federal authority to protect waterways. The Trump administration reversed them as part of an overall reduction of environmental regulations.
It’s also been a politically charged issue. Congress passed resolutions earlier this year to overturn the water protections of the Biden administration. Republicans claimed that the White House imposed rules on businesses and agriculture, and the Senate voted for it 53-43. This convinced four Democrats and Independent Senator Krysten S. Sinema from Arizona to vote with Republicans. Biden vetoed this resolution.
