The Environmental Protection Agency (EPA) on Friday finalized a more robust definition of “waters of the United States,” effectively overturning Trump-era rules meant to benefit polluters and property developers. The protections now in place are similar to Obama-era protections and, according to the EPA, “establishes a durable definition … that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.”
“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” Assistant Secretary of the Army for Civil Works Michael L. Connor said in a press release. The EPA partnered with the Department of the Army to provide that finalized ruling, a pre-publication version of which is available here.
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Among the waters protected through this definition, navigable and interstate waterways and oceans remain protected. The rule also adds in certain wetlands, lakes, and ponds, as well as tributaries tied to larger bodies of water. This decision was informed by prior legal cases and, according to experts reached by The New York Times, is seen as strategic given the fact that the Supreme Court will soon rule on Sackett v. EPA. The case concerns the term “navigable waters,” which is included in the finalized protections announced by the EPA this week.
For this case, in which oral arguments were heard at the start of the October 2022 Supreme Court term, it’s a matter of whether wetlands on the land purchased by Michael and Chantell Sackett are federally protected and thus require federal permits to potentially alter. The Sacketts want to build their dream home near Priest Lake, Idaho—if only the environment weren’t conspiring against them.
I hope you can sense my sarcasm in this absurd argument presented by the plaintiffs. A ruling from the majority-conservative SCOTUS could have wide-ranging consequences outside of just allowing the Sacketts to build what will presumably be an eyesore of a McMansion. Environmental groups and activists worry that the Clean Water Act could drastically change were an opinion issued in favor of the Sacketts.
Which brings us back to why the Biden administration likely made the move that they did on Friday. Earthjustice notes that “the extensive scientific record that accompanies this new rule highlights the scale and complexity of the technical issues that agencies must consider in implementing the Clean Water Act, and further illustrates why the Court should tread cautiously when considering major changes to the law in this area.” Here’s hoping the Supreme Court actually takes that advice to heart.