The Environmental Protection Agency (EPA) has reduced the number of wetlands covered by federal dumping regulations, effective Aug. 29.
The change complies with a May ruling by the U.S. Supreme Court in Sackett v. EPA that narrowed the interpretation of “waters of the United States,” which are subject to federal regulation.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army [Corps of Engineers] have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” EPA Administrator Michael S. Regan said in a statement announcing the change.
“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.”
The Clean Water Act of 1972 (CWA) prohibits dumping pollutants, including fill, into “the waters of the United States.” The term “waters of the United States” isn’t defined in the law, so regulating agencies have interpreted it since the 1970s. Generally, it was taken to mean navigable waterways, such as streams, rivers, or lakes, and their adjacent tributaries and wetlands.
The EPA considered that any wetland having a “significant nexus” to the navigable waters to be part of the “waters of the United States,” even if it wasn’t directly joined to it.
That definition provoked frustration and cries of federal overreach by farmers and land developers. In the Sackett case, the landowner had dumped fill into land that was near a ditch that fed into a creek, which fed into Priest Lake, a navigable body of water. On that basis, the EPA classified the land as “waters of the United States” and ordered the owner to remove the fill or face stiff fines.
The Supreme Court overruled that order. The Court also rejected the “significant nexus” test and stated that to be covered under the CWA, wetlands must not be merely adjacent to a navigable waterway but must have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they’re “indistinguishable” from those waters.
A 2006 Supreme Court decision noted that the EPA had deemed “the waters of the United States” to “cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States.” Land containing storm sewers and desert washes was also included, the decision stated.
Change Welcomed
Lawmakers from agricultural states hailed the Supreme Court ruling and decried the EPA’s perceived intrusion into farming practices.Sen. Charles Grassley (R-Iowa) wrote on the social media platform X, formerly known as Twitter, on May 25: “ALL 9 JUSTICES AGREE: EPAs massive overreach [with] Waters of the US reg exceeds its authority. After all these [years] it’s a huge victory for farmers builders & common sense. The farmers of Iowa can [be] thankful for Supreme Court making sure normal farming operations aren’t regulated by EPA.”
Sen. Mike Braun (R-Ind.) wrote on X on Aug. 29, “In May, the Supreme Court ruled that EPA overstepped its authority in its 2023 WOTUS rule.
“Today, EPA narrowly amended its rule without farmer input. Congress, not the EPA, should define Waters of the US.”
Environmental Concerns
While the Supreme Court unanimously agreed that the EPA had overstepped in the Sackett case, several justices, led by Justice Brett Kavanaugh, believed that the majority opinion defined “waters of the United States” too narrowly.“The ordinary meaning of the term ‘adjacent’ has not changed since Congress amended the Clean Water Act in 1977 to expressly cover ‘wetlands adjacent’ to waters of the United States,” Justice Kavanaugh wrote in a concurring opinion.
He noted the possibility that pollutants could find their way into U.S. waterways through wetlands that are close to, but not directly joined with, major bodies of water such as the Chesapeake Bay or the Mississippi River.
Environmentalists voiced similar concerns.
“Because of a terrible US Supreme Court decision on the Clean Water Act earlier this year, EPA amended the Waters of the US Rule to exclude protections for a lot of Arizona waters, including our desert washes. We need a Congress & Supreme Court that understand #WaterIsLife,” the Grand Canyon Chapter of the Sierra Club wrote on X on Aug. 29.
With the final rule in place, the Army Corps of Engineers will resume issuing determinations on whether particular wetlands are covered under the CWA. Those rulings had been after the Supreme Court decision in May.
