A new rule revives an older set of protections for rivers, marshes, and waterways, setting aside Obama and Trump era changes. The Environmental Protection Agency finalized the rule on Friday.
The Biden administration has been working to finalize regulations that protect hundreds of thousands of small streams, wetlands, and other waterways before a major Supreme Court ruling later this year that could complicate the government’s ability to protect wetlands and other waters.
The case before the Supreme Court, Sackett v. EPA centers around a key phrase. “waters of the United States” in the 1972 Clean Water Act. The Clean Water Act prohibits the “discharge of pollutants” into “navigable waters.” However, the act also defines the term “navigable waters” vaguely and counterintuitively, to include all “waters of the United States, including the territorial seas.”
Under former president Trump, the Supreme Court moved dramatically to the right after Trump filled a third of its seats. And this brings up the long-running dispute involving an Idaho couple named Chantell and Michael Sackett, according to Digital Journal.
To make a long story short, in 2007, the couple tried to build a home on their land near Idaho’s Priest Lake. However, the EPA determined that the property contained a wetland and that the couple needed to obtain a Clean Water Act permit or face heavy fines.
The ambiguity in the wording of the act is front and center in the SCOTUS case and the EPA has made a strategic move in getting the revised rule on the books before the court makes its ruling.
“If the Supreme Court goes first, then the agency can’t finalize a rule that goes beyond it,” said Kevin S. Minoli, a partner at Alston & Bird who served as an E.P.A. counsel in the Clinton, Bush, Obama, and Trump administrations. By issuing a rule first, he said, the government has “more room to interpret” the court decision when it comes.
As it stands right now, according to Yale Environment 360, the U.S. loses about 60,000 acres of wetlands a year. “This case has the potential to drastically reduce the number of wetlands that would be protected,” said Amy Sinden, a professor of environmental and property law at the Beasley School of Law at Temple University.
We have put forward a rule that’s clear, it’s durable, and it balances that protection of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry, watershed organizations,” EPA Assistant Administrator for Water Radhika Fox told The Associated Press, reports NPR.org.
A 2021 review by the Biden administration found that the Trump rule allowed more than 300 projects to proceed without the federal permits required under the Obama-era rule and that the Trump rule significantly curtailed clean water protections in states such as New Mexico and Arizona.
In August 2021, a federal judge threw out the Trump-era rule and put back in place a 1986 standard that was broader in scope than the Trump rule but narrower than Obama’s. U.S. District Court Judge Rosemary Marquez in Arizona, an Obama appointee, said the Trump-era EPA had ignored its own findings that small waterways can affect the well-being of the larger waterways they flow into.
All in all, most people can see that a clear and concise definition of what constitutes clean water, and which wetlands need protection is necessary if we are to protect the environment and the health of the population.
