The Biden administration finalized revised environmental regulations impacting bodies of water Tuesday in response to a Supreme Court decision in May upending the original version.
In a joint announcement, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers unveiled the new so-called Waters of the United States (WOTUS) regulations. The agencies added they remain committed to following the law and implementing the Clean Water Act to protect American water sources from pollution and degradation.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” EPA Administrator Michael Regan said in a statement. “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.”
“EPA will never waver from our responsibility to ensure clean water for all,” Regan added. “Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”
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On May 25, the Supreme Court struck down the EPA’s original finalized WOTUS regulations, ruling that the Biden administration had moved forward with a definition of waters that was too broad. The ruling ultimately held that the federal government’s WOTUS definition must be restricted to a water source with a “continuous surface connection” to major bodies of water.
The high court’s decision — which was widely cheered by landowners, industry groups and Republican lawmakers — came months after the EPA and Army approved the original WOTUS regulation. The administration said that rulemaking would be implemented beginning in March.
The rule opened the door for the federal government to regulate wetlands, lakes, ponds, streams and “relatively permanent” waterways, largely mimicking a pre-2015 environmental rule set during the Obama administration, which implemented the changes in an effort to curb water pollution. The regulation was the broadest interpretation to date of which water sources require protection under the CWA.
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Industry groups, Republican lawmakers in Congress and multiple states blasted the regulation as an example of federal overreach and demanded that it be rescinded. In April, a federal judge granted a request from 24 states and several trade groups to pause implementation of the regulation. The House and Senate both approved a bill rejecting the regulation.
And the EPA’s WOTUS rule came while the case Sackett v. EPA was before the Supreme Court. That case centered on Michael and Chantell Sackett, two Idaho residents whom the EPA prohibited from building a home near a wetland years ago, citing the Clean Water Act.
Once the court ruled in favor of the Sacketts, the EPA was forced to revise the regulations.
However, in response to WOTUS revision Tuesday, the EPA is facing additional criticism for not going far enough to conform its regulations to the Supreme Court ruling.
“Despite our warnings that the Biden WOTUS rule was clear regulatory overreach and the Supreme Court soundly rejecting its ‘waters of the United States’ definition, the administration continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans,” said Sen. Shelley Moore Capito, R-W.Va., the ranking member of the Environment and Public Works Committee.
“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” she added.
The Waters Advocacy Coalition, a group that represents small businesses, farmers and ranchers, homebuilders and manufacturers, echoed Capito’s comments.
“This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act,” Waters Advocacy Coalition Chair Courtney Briggs said in a statement. “Even worse, the agencies blocked public input and engagement in the revision process.”
“This is unfortunate as clean water is a public health and economic priority for our nation’s businesses, their employees, customers and the communities in which they operate,” Briggs continued. “The administration is proving again that it does not understand that categorizing land or water features as non-federal waters does not mean that they are unprotected and that it intends to broaden the scope of the federal government’s power — even if it defies the law.”
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