The Biden administration made only minimal changes to its “waters of the United States” regulation to comply with the Supreme Court’s new and stricter definition of wetlands, and that will perpetuate litigation over the Clean Water Act, said West Virginia Sen. Shelley Moore Capito on Wednesday. At a Senate hearing held on the 51st anniversary of the landmark 1972 law, Capito said, “It will likely be up to the courts again to constrain administrative overreach or give us some clarity.”
In May, the Supreme Court restricted federal protection of wetlands under the so-called WOTUS regulation to marshy areas with “a continuous surface connection” to streams, oceans, rivers, or lakes. Previously, the standard was wetlands with a “significant nexus” to federal waters. As a result of the ruling, some assessments say, more than half of the wetlands in the country are no longer protected.
Senate Environment Committee chair Tom Carper of Delaware said that “the Supreme Court got it wrong” in its ruling in Sackett v. EPA after “nearly a half-century of progress” in reducing water pollution and slowing the loss of wetlands.
“The EPA has done the bare minimum to revise its initial proposal in response to the Supreme Court decision,” said Capito, the senior Republican on the Senate Environment Committee. “I fear this is setting us up for a repeat of WOTUS whiplash.” The Obama, Trump, and Biden administrations wrote WOTUS rules with conflicting limits on wetlands protection.
“There will be litigation,” agreed Susan Bodine, a lawyer and EPA assistant administrator during the Trump years. The EPA revisions, issued on Sept. 8, can be challenged on procedural grounds — the agency issued a final rule without seeking public comment — and for failing to comply with the Supreme Court ruling, she said. Beyond that, there are ongoing lawsuits challenging the WOTUS rule the administration issued in January.
Because of those ongoing lawsuits, the EPA’s revised rule is in effect in 23 U.S. states but not in the other 27.
“The Sackett decision is not grounded in science, [is] shortsighted, and runs counter to the intent” of the Clean Water Act, said Mazeika Sullivan, a Clemson University professor, who testified during the Senate hearing. “I urge Congress to remedy this situation.”
“The sky is not falling,” said Bodine. “Recognizing limits on Clean Water Act jurisdiction does not mean all wetlands will be filled in or waterways will become polluted.” She said there were many state and federal programs to protect water purity and wetlands.
To watch a video of the hearing, click here.