EPA Revises Waters Rule to Align With High Court Wetlands Ruling

A new rule governing federally protected waters and wetlands was issued Tuesday by the EPA to align agency regulations with a US Supreme Court ruling that will allow unpermitted development in wetlands across the country.

The rule revises the Biden administration’s earlier waters of the US, or WOTUS, definition finalized in January, removing its legal basis, which was struck down by the Supreme Court in May in Sackett v. EPA.

The January WOTUS rule expanded federal Clean Water Act protections over wetlands and waterways. But the Supreme Court in Sackett limited the waters that can be protected under the act, potentially allowing construction and pollution in vast swaths of wetlands across the country.

The new post-Sackett rule revises the January definition to remove the “significant nexus” standard that was the basis of the earlier rule. It also says wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways as required by the Sackett ruling.

The significant nexus test allowed streams and wetlands adjacent to larger water bodies to be protected under the Clean Water Act.

The new rule implements the court’s opinion that the Clean Water Act protects only waters and wetlands that are relatively permanent and have a continuous surface connection to navigable waterways, such as the Potomac or Mississippi rivers.

Sackett v. EPA effectively eliminated the federal government’s role in regulating many wetlands nationwide, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated only by states.

Immediately Finalized

The EPA finalized the post-Sackett rule Tuesday without issuing a draft for public comment. The agency did so using the rarely-used “good cause” exception to notice-and-comment under the Administrative Procedure Act, which allows federal agencies to forgo public comment when officials think that a rule update is sufficiently urgent.

In this case, the Sackett ruling undermined the existing WOTUS regulation, leaving no legal regulation in place to govern wetlands and waterways.

Radhika Fox, chief of the EPA’s Office of Water, said in July that the agency will answer questions from the public only after the final rule takes effect.

Industry groups making up the Waters Advocacy Coalition, including the National Mining Association, American Petroleum Institute, American Farm Bureau Federation, and dozens of others, in July offered their comments to the EPA regardless.

The coalition urged the EPA to avoid finalizing a rule that attempts to satisfy the requirements of Sackett while also retaining aspects of the old rule that would more broadly protect waters and wetlands.

A WOTUS definition that “pushes the outer limits of the Agencies’ CWA authority” would be “legally vulnerable,” the groups wrote.