Aug 30, 2023EPA removes federal protection for many US waterways in response to ruling
In response to a recent Supreme Court decision, the EPA on Tuesday removed federal protection for a majority of U.S. wetlands.
The new rule amending the 2023 definition of “waters of the United States” will take effect immediately and leave states responsible for the protection of many waterways and wetlands.
The change was announced by the EPA and the U.S. Department of the Army in response to May’s unanimous ruling in Sackett v. EPA, which narrowed the definition on waters regulated under the Clean Water Act. Justice Samuel Alito said the law includes only streams, oceans, rivers and lakes, and wetlands with a “continuous surface connection to those bodies.”
A 2006 Supreme Court decision determined that wetlands would be protected if they had a “significant nexus” to major waterways. The final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected, according to an EPA statement.
“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 S. Regan said in the statement. “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 will never waver from our responsibility to ensure clean water for all.”
The 1972 Clean Water Act protecting waterways and wetlands has been the subject of debate for decades. On Jan. 18, 2023, the EPA and the Army published a rule revising the definition of WOTUS, which became effective on March 20. On May 25, the Supreme Court issued the Sackett decision.
A Sept. 12 public webinar will provide updates on the WOTUS definition. Registration information is available online.
“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” Michael L. Connor, Assistant Secretary of the Army for Civil Works, said in the statement. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision. Moving forward, the Corps will continue to protect and restore the nation’s waters in support of jobs and healthy communities.”
USDA Secretary Tom Vilsack said the new rule provides the agriculture community “predictability and stability,” with the EPA addressing some of farmers’ most pressing concerns.
RJ Andrus, National Potato Council president, said the new rule retains much of the overly broad language and governmental overreach from the original draft.
“When EPA announced plans to amend the WOTUS regulations that the Supreme Court struck down, we were concerned that the revisions would merely tinker around the edges to technically comply with the unanimous Sackett decision,” Andrus said in a statement. “This week those fears became reality as the new rule leaves in place much of the original ambiguous and overreaching language. We are disappointed that this revision fails to provide the clarity that growers were seeking.”
