by Jacob Fischler, Georgia Recorder [This article first appeared in the Georgia Recorder and in the States Newsroom, republished with permission]

August 30, 2023

A federal rule limiting agencies’ power to regulate water pollution will severely restrict protections for waters and wetlands throughout the country, but could also be subject to challenges from conservative groups that maintain the new rule exerts more federal jurisdiction than the U.S. Supreme Court intended in a May decision.

With the rule published Tuesday to redefine which “waters of the United States,” or WOTUS, are covered under the Clean Water Act, the U.S. Environmental Protection Agency and Army Corps of Engineers aimed to bring the federal definition in line with the Supreme Court’s ruling this year narrowing the scope of federal power.

In a 5-4 decision, the court held the federal government can only regulate waters with “a continuous surface connection” to the types of navigable waters indisputably covered by the Clean Water Act.

The revised rule, which will take effect when it is published in the Federal Register in the coming days, removes the “significant nexus” standard that the court invalidated in the Sackett v. EPA case in May.

It also removes federal jurisdiction from wetlands that cross state lines and revised the definition of “adjacent” to mean “having a continuous surface connection,” which is consistent with Justice Samuel Alito’s majority opinion.

The new definition is broader than some expected, said Ashley Peck, an attorney with Holland and Hart LLP’s water practice, because the Sackett case was only about wetlands, but the agencies removed the significant nexus test for all waters. The EPA likely determined it would reduce future court battles by applying the ruling beyond wetlands, she added.

“EPA is reading the tea leaves to some extent based on the court’s broader holding,” she said. “I think this probably was a good middle ground… You’re never going to please everybody. But I think this is an effort by EPA to head off more litigation.”

Split reaction

Environmental groups and Democrats in Congress described the updated rule as a faithful execution of the court ruling – even as they said the policy would remove protections from millions of acres across the country.

But key congressional Republicans and conservative legal groups said Tuesday and Wednesday the update resulted from a rushed process and overlooks major criteria the court outlined.

The new definition could impact millions of stream-miles and undermine the main goal of the Clean Water Act, Tannis Fox, a senior attorney with the legal group Western Environmental Law Center, said in a Wednesday interview.

“That purpose has been undermined by the Sackett decision because the federal government is no longer able to protect the biological, physical integrity of these waters,” she said.

Rick Larsen, a Washington Democrat who is the ranking minority member on the House Transportation and Infrastructure Committee, said in a Tuesday statement he applauded the agencies’ work but disagreed with the court’s decision.

“Ultimately Congress needs to step in and correct the egregious misreading of the Clean Water Act by the Supreme Court to ensure communities continue to have access to clean and safe water,” he said.

Meanwhile, conservative legal activists and leading Republicans on key congressional committees called the rule an attempt to do the bare minimum required under the Sackett decision.

In a Tuesday statement, House Transportation and Infrastructure Chairman Sam Graves, a Missouri Republican, and Water Resources and Environment Subcommittee Chairman Dave Rouzer, a North Carolina Republican, said the revised rule “barely pays lip service” to the court’s decision. They implied the agencies should have started from scratch with a new rule, rather than merely adjusting a definition.

“The Administration is now trying to make Sackett fit with a rule that never should have been issued in the first place,” they said. “This revised rule ignores fundamental concerns laid out in Sackett and is a missed opportunity to finally end longstanding confusion over what constitutes a WOTUS.”

Rule eschews public comment

The agencies said they skipped a more thorough rulemaking process because they were only doing as the court instructed.

“Because the sole purpose of this rule is to amend these specific provisions of the 2023 Rule to conform with Sackett, and such conforming amendments do not involve the exercise of the agencies’ discretion, providing advance public notice and seeking comment is unnecessary,” the rule’s preamble reads.

The expedited process was appropriate, Peck said, because the court decision that invalidated existing agency regulations put “jurisdictional determinations at a standstill,” she said. Developers and others who need federal approvals are still waiting, she said.

The agencies “felt compelled to get this rule out so that decisional determinations for industry could continue,” Fox, the environmental attorney, said.

The agencies “tried to hue closely to the decision,” she added.

But Damien Schiff, who successfully led the challenge to the WOTUS rule in the Sackett case as a senior attorney at the conservative Pacific Legal Foundation, , said the revised definition missed basic parts of court decision. Holding a normal public comment period would have prevented the agencies from advancing a flawed rule, he said.

Conservatives take issue with rule’s scope, process

Schiff said the agencies correctly disregarded the significant nexus test.

“That’s the end of where I would say the agencies did a good job,” he said.

The EPA and Army Corps “failed to accurately articulate” new criteria to replace the discarded significant nexus test, Schiff said.

The thrust of the majority opinion in the Sackett case was that only natural water features that could be reasonably described as streams, creeks or rivers could be considered waters of the United States, but the new definition doesn’t fully exclude things like human made ditches, he said.

And despite the rule’s preamble specifically noting that Sackett requires a surface connection between a wetland and a covered water for the wetland itself to be covered, the court actually went beyond that, Schiff said. Alito’s opinion would have required wetlands to be indistinguishable from covered waters, he said.

Such flaws could have been fixed in a normal rulemaking process, he added.

“I guarantee you that if they had offered a comment period that we and many, many other groups would have pulled this out and said, ‘Hey, you’re ignoring half the test,’” Schiff said.

Uncertainty remains

While congressional Republicans and others have for years criticized WOTUS rules, which have changed with considerable frequency in the past decade with changing presidential administrations and court decisions. The changes leave interested parties unsure of how to plan for building projects that can take years.

The rule does not provide the regulatory certainty Republicans sought, they said.

“The administration continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans,” Senate Environment and Public Works ranking Republican Shelley Moore Capito, of West Virginia, said in a statement.

Peck disagreed, saying though the updated rule will require more agency guidance, it appears to be a step toward a firmer regulatory landscape.

“You’re never going to get exact certainty and an exact bright line with this issue,” Peck said. “And if you’re looking for that, it’s an impossible dream.

The new standard will likely be challenged in court, Schiff said, if not in new cases than in existing lawsuits against the larger Biden administration WOTUS rule.

More uncertainty will come from a lack of federal jurisdiction over more than half of the nation’s water features, Peck and Fox said.

The Sackett decision and regulatory update puts more pressure on states that want to maintain strong protections for waters and wetlands no longer covered by federal agencies. Other states may seek to dilute protections.

That will mean that the rules will differ state by state, creating more confusion, Peck said.

“It’s up to the states to fill in the gap,” Fox said. “And that’s going to look like a patchwork throughout the nation, depending on the politics in a particular state.”

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.