The Biden administration weakened regulations protecting millions of acres of wetlands on Tuesday, saying it had no choice after the supreme court sharply limited the federal government’s jurisdiction over them.
The rule would require that wetlands be more clearly connected to other waters like oceans and rivers, a policy shift that departs from a half-century of federal rules governing the nation’s waterways.
The Environmental Protection Agency administrator, Michael Regan, said the agency had no alternative after the supreme court sharply limited the federal government’s power to regulate wetlands that do not have a “continuous surface connection” to larger, regulated bodies of water.
Justices boosted property rights over concerns about clean water in a May ruling in favor of an Idaho couple who sought to build a house near a lake. Chantell and Michael Sackett had objected when federal officials required them to get a permit before filling part of the property with rocks and soil.
The ruling was the second decision in as many years in which a conservative majority on the high court narrowed the reach of environmental regulations.
“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,” Regan said in a statement on Tuesday.
The rule announced on Tuesday revises a rule finalized earlier this year regulating “waters of the United States”. Developers and agriculture groups have long sought to limit the federal government’s power to use the Clean Water Act to regulate waterways, arguing the law should cover fewer types of rivers, streams and wetlands. Environmental groups have long pushed for a broader definition that would protect more waters.
The new rule is highly unusual and responds specifically to the supreme court ruling in the Sackett case. Typically, a rule is proposed, the public weighs in and then the federal government releases a final version. This rule changes existing policy to align with the recent supreme court decision and is final.
Damien Schiff, a senior attorney with the Pacific Legal Foundation who represented the Sacketts, said the Biden administration properly changed rules to eliminate unlawful criteria to protect wetlands. But he added that the rule ignored other ways that the court limited the reach of the Clean Water Act to protect certain streams and ditches.
The supreme court ruling was a win for developer and agriculture groups. It said federally protected wetlands must be directly adjacent to a “relatively permanent” waterway “connected to traditional interstate navigable waters”, such as a river or ocean.
They also must have a “continuous surface connection with that water”, Justice Samuel Alito wrote.
The court’s decision broke with a 2006 opinion by the former justice Anthony Kennedy that said wetlands were regulated if they had a “significant nexus” to larger bodies of water. That had been the standard for evaluating whether developers needed a permit before they could discharge into wetlands. Opponents had long said the standard was vague, hard to interpret and generally unworkable.
Justice Elena Kagan wrote in a separate opinion that the majority’s decision was political, improperly weakening regulatory powers Congress gave the federal government.
Because the sole purpose of the new rule is to amend specific provisions of the previous rule that were rendered invalid by the high court, the new rule will take effect immediately, the EPA said.
Julian Gonzalez, a senior legislative counsel with Earthjustice, said the change was likely to weaken protections for ephemeral streams, which only flow after rainstorms and are especially common in the arid south-west.
Kelly Moser, a senior attorney at the Southern Environmental Law Center, said the new rule overturns decades of federal law and practice. “The rule, like the Sackett decision itself, severely restricts the federal government’s ability to protect critical waters including wetlands that shield communities from damaging floods and pollution.”
Reducing wetland protections “while two hurricanes are barreling off our coasts is nothing to celebrate”, she added.
In recent years, depending on the political party in the White House, the power of the Clean Water Act has varied sharply. The Obama administration sought to enlarge federal power to protect waterways. The Trump administration rolled them back as part of a broader curtailment of environmental regulations.