The Biden administration removed federal protection from an estimated half of U.S. wetlands in a regulation unveiled a week ago to comply with the Supreme Court decision that shortened the upstream reach of water pollution laws. Agricultural and construction groups said the regulation was “legally vulnerable” because the administration, in their view, did not fully carry out the ruling.
“The agencies made only a few minor edits to the 2023 WOTUS [waters of the United States] definition, per clear and irrefutable direction from the high court,” said the Associated General Contractors of America, a trade group for the construction industry. The National Cotton Council said the revisions by EPA and the U.S. Army Corps of Engineers “do not adequately comply” with the Supreme Court ruling, adding, “this action may end up in court.”
In May, the Supreme Court said the 1972 Clean Water Act applied 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, was a “significant nexus” between a tract and a waterway.
EPA administrator Michael Regan said the new WOTUS regulation provided “a clear path forward” in line with the wetlands ruling. “While I am disappointed by the Supreme Court’s decision…EPA and Army have an obligation to apply this decision alongside our state co-regulators, tribes, and partners.” The new regulation removed the “significant nexus” standard, said the EPA.
Environmental and wildlife groups urged Congress to expand wetlands protections.
The EPA webpage for the WOTUS amendments is available here.