Clean Water Act

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.

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.

Mark Squillace, a professor of Natural Resources Law at the University of Colorado Law School, spoke with FERN's Ag Insider about how a recent Supreme Court decision will affect the nation's wetlands. This interview has been edited for length and clarity. (No paywall)

In a decision that will narrow federal protection of wetlands, the Supreme Court ruled on Thursday that the 1972 clean water law applies only to marshy areas with “a continuous surface connection” to streams, oceans, rivers, or lakes. “Today’s ruling is a profound win for property rights and the constitutional separation of powers,” said the Pacific Legal Foundation, which argued the case for a couple blocked from building a home in northern Idaho. (No paywall)

Presidents almost always prevail when they veto legislation; there have been only 20 overrides in the 45 years since Gerald Ford left office. So Republican leaders in Congress face an uphill struggle against the Biden administration's "waters of the United States" (WOTUS) regulation. Nonetheless, the House could vote as early as Tuesday in a rematch with President Biden.

Less than four months ago, the Biden administration unveiled “a durable definition” of the upstream reach of clean water laws across the country — a so-called waters of the United States (WOTUS) regulation. With a ruling on Wednesday, federal judges have enjoined implementation of the rule in 26 of the 50 states while they hear lawsuits that would void the regulation.

In a long-shot tactic, Republicans in the Senate and House pressed on Thursday for a vote to overturn the Biden administration’s Waters of the United States rule, which spells out the upstream reach of water pollution laws. It was the third WOTUS rule to be issued in less than a decade. The Supreme Court is expected to rule in coming weeks on an Idaho case that would greatly limit federal protection of wetlands.

Seventeen farm, construction, and mining groups filed suit in federal court to overturn the Biden administration’s definition of the upstream reach of water pollution laws. They argued that the new Waters of the United States (WOTUS) rule was “so opaque, uncertain, and all-encompassing” that no one could confidently know its limits.

The Supreme Court should restrict federal regulation of wetlands to marshy areas with a surface connection to a waterway — a dramatic reduction in coverage but a standard that would be easier to understand than the "significant nexus" test now in use, said a lawyer for the conservative Pacific Legal Foundation on Monday. Two justices said the court's decision, in a case involving a home site in Idaho, could rewrite wetlands regulations nationwide.

Last week, water experts marked the 50th anniversary of the Clean Water Act with a dire warning: After evaluating over 700,000 miles of rivers and streams across the country, they concluded that half of those waters are too polluted to fish or swim in—and agriculture is often to blame.(No paywall)

The president of the largest U.S. farm group called for members to bring the "same energy and devotion when it comes to WOTUS" that they used last year to preserve a tax break on inherited property. President Zippy Duvall said the American Farm Bureau Federation also influenced legislation and USDA programs on climate mitigation to ensure that they "respect farmers."

Decrying what it called regulatory overreach, the Trump administration announced on Thursday that it will limit enforcement of clean water laws to oceans, rivers, core tributaries, and adjacent wetlands. Environmentalists said the move would leave half of U.S. wetlands and millions of miles of streams without protection from pollution.