EPA Reduces Federal Waters Scope Post Supreme Court Decision
The EPA Reduces Wetlands Covered by Federal Dumping Regulations
The Environmental Protection Agency (EPA) has recently made changes to the number of wetlands covered by federal dumping regulations, effective Aug. 29.
This decision comes after a May ruling by the U.S. Supreme Court in Sackett v. EPA, which narrowed the interpretation of “waters of the United States” 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.
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6/8/2023
“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,” stated EPA Administrator Michael S. Regan.
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” has been subject to interpretation by regulating agencies since the 1970s.
Previously, any wetland with a “significant nexus” to navigable waters was considered part of the “waters of the United States,” even if it wasn’t directly connected.
This definition has caused frustration and claims of federal overreach from farmers and land developers. In the Sackett case, the EPA classified land as “waters of the United States” and ordered the owner to remove fill or face fines, based on the land’s proximity to a creek that fed into a navigable body of water.
The Supreme Court overturned this order and rejected the ”significant nexus” test, stating that wetlands must have a continuous surface connection to bodies of water that are “waters of the United States” in their own right.
A previous Supreme Court decision noted that the EPA had classified “the waters of the United States” to cover millions of acres of swampy lands, including half of Alaska and an area the size of California in the lower 48 states.
The EPA has not provided an estimate on the number of acres of wetlands no longer considered “waters of the United States” under the new definition.
Change Welcomed
Lawmakers from agricultural states have praised the Supreme Court ruling and criticized the EPA’s perceived intrusion into farming practices.
Sen. Charles Grassley (R-Iowa) wrote on the social media platform X on May 25, “ALL 9 JUSTICES AGREE: EPAs massive overreach w Waters of the US reg exceeds its authority. After all these yrs it’s a huge victory for farmers builders & common sense. The farmers of Iowa can b thankful for Supreme Court making sure normal farming operations aren’t regulated by EPA.”
“In May, the Supreme Court ruled that EPA overstepped its authority in its 2023 WOTUS rule,” Sen. Mike Braun (R-Ind.) wrote on X on Aug. 29.
“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 the majority opinion defined “waters of the United States” too narrowly.
“The ordinary meaning of the term ‘adjace
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