(Reuters) The Biden administration finalized a rule protecting waterways that feed into rivers and lakes under the Clean Water Act, addressing a contentious question the U.S. Supreme Court is currently reviewing and restoring previous protections the Trump administration removed.
The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers rule restores protections to waterways that have a “significant nexus” to navigable U.S. waters, protections that developers, ranchers and manufacturers had complained are overly broad and create cumbersome permitting and regulatory hurdles.
The new final rule defines wetlands or seasonal streams that feed into permanent rivers or lakes as protected under the Clean Water Act (CWA), if they can affect downstream waterways. The Trump-era rule limited CWA protections to only relatively permanent waterways. It was struck down by two federal courts that found the regulation could harm the environment. The Supreme Court started its current term in October hearing Sackett v. EPA, a case that asks what test courts should use to ascertain what constitutes "waters of the United States," and thereby regulated by the Clean Water Act. Pacific Legal Foundation attorney Charles Yates, who represents plaintiffs who were told they needed to obtain a CWA permit to build a home on wetlands, said the case "provides the Supreme Court an important opportunity to clarify and decisively end this continuous game of regulatory ping-pong."
But attorney Stu Gillespie of Earthjustice, an environmental law firm that challenged the Trump-era rules in court, said the Biden administration’s rule is based on a robust scientific record, showing that federal agencies and not the courts should be in charge of these policies.
“I think this kind of highlights the perils of an activist court, reaching out and getting in front of their own skis,” Gillespie said of the regulatory process behind the Friday rule.
The rule is certain to be challenged in court immediately, said Robin Craig, a professor at the University of Southern California Gould School of Law, but added that "an adverse decision from the Supreme Court in Sackett could gut the new rule entirely." EPA administrator Michael Regan said the new rule would be "durable" and provide "greater certainty for farmers, ranchers and landowners."
