The Biden administration intends to update its “waters of the United States” regulation, which determines the upstream reach of anti-pollution laws, by Sept. 1, said the EPA on Wednesday. The revised WOTUS rule will reflect the recent Supreme Court decision that reduces federal protection of wetlands, it said.
In the May 25 ruling, the court said that the 1972 Clean Water Act applies only to marshy areas with a “continuous surface connection” to streams, oceans, rivers, or lakes. The previous standard, created in a 2006 ruling by the justices, referred to a “significant nexus” between a tract and a waterway.
“EPA (and) the Army Corps of Engineers remain fully committed to ensuring that all people have access to clean, safe water. We will never waver from that responsibility,” said the EPA statement about the upcoming revisions. “The agencies are interpreting ‘waters of the United States’ consistent with the Supreme Court’s decision.” Both the EPA and the Corps of Engineers have regulatory duties for federal waterways.
Farm and business groups said the Supreme Court decision would guard against governmental overreach into private property. Federal district courts have blocked implementation of the Biden administration’s WOTUS definition, issued at the end of 2022, in 26 states.
Justice Department lawyers asked a district judge in North Dakota earlier this week to suspend action in a lawsuit that seeks to overturn the administration’s 2022 WOTUS rule. “Good cause exists for this request,” they said, referring to the ongoing work to revise the regulation. “Federal defendants intend to issue a final rule on or before September 1, 2023. Federal defendants’ new rule may resolve, or at least narrow, the issues in this case. A stay will allow parties time to assess the new rule and determine whether to continue to litigate this case.”
House Agriculture Committee chair Glenn Thompson was among Republican lawmakers who, immediately after the Supreme Court decision, said the EPA should withdraw the 2022 WOTUS rule. On the day of the ruling, President Biden said the administration would “carefully review this decision and use every legal authority we have to protect our nation’s waters for the people and communities that depend on them.”
The Obama, Trump, and Biden administrations have issued differing interpretations of the upstream reach of the Clean Water Act and its protection of wetlands.
Although farming practices are generally exempt from the clean water law, ag groups are in the forefront of opposition to regulations like WOTUS out of concern those rules might eventually affect them.
The EPA motion is available here.