The Environmental Protection Agency and the U.S. Army Corps of Engineers issued a final rule protecting waters under the Clean Water Act. Released on December 30, 2022, the Waters of the United States Rule defines the types of waters which fall under the jurisdiction of the Clean Water Act. The rule will take effect 60 days after its publication in the Federal Register.
“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” said Assistant Secretary of the Army for Civil Works Michael L. Connor.
Reversing the Trump Administration’s Rule
The new rule reverses the Trump administration’s attempt to redefine the Waters of the United States to restrict which waters receive protection under the Clean Water Act. It restores the protections put in place by the Obama Administration in 2015 and strengthens protections for waters that are drinking water sources. The new rule protects waters that are “relatively permanent” or have a “significant nexus” with larger waterways.
“Today’s rule pumps the brakes on one of the favorite strategies of big polluters and the Trump Administration: limiting the definition of ‘Waters of the United States’ under the Clean Water Act,” said Sierra Club Clean Water Director Beth Roach.
The Clean Water Act
The basis of the Clean Water Act was enacted in 1948 and called the Federal Water Pollution Control Act. Congress expanded the Act in 1972, calling it the Clean Water Act. The Clean Water Act prohibits the discharge of pollutants into navigable waters. The Act defines navigable waters as “the waters of the United States.” However, that term is not defined in the Act but by federal agencies in regulations. The Clean Water Act gives the EPA and the Army Corps the authority and responsibility to protect “the waters of the United States.”
During President Trump’s term, Earthjustice filed two lawsuits on behalf of environmental organizations and tribes which challenged Trump’s Navigable Waters Protection Rule. The Trump administration’s rule took protections away from much of the country’s waterways. An Arizona court ruled in favor of Earthjustice and its clients in 2021.
A Supreme Court Case Could Weaken the New Rule
While the EPA and Army Corps issued the new rule, the Supreme Court prepares to rule in a case called Sackett v. EPA. Michael and Chantall Sacket own a lot near Priest Lake, Idaho, and want to build a house there. After they started placing sand and gravel, the EPA told the couple that building on the lot violated the Clean Water Act. The Sackett’s lot had wetlands classified as “navigable waters.” They sued, and in 2012, the Supreme Court allowed litigation of the Sacketts’ case in federal court. The EPA removed its compliance order during the litigation.
The U.S. Court of Appeals for the Ninth Circuit ruled that withdrawing the EPA’s compliance order didn’t nullify the Sacketts’ challenge. The court also ruled that the EPA has jurisdiction over their property under the Clean Water Act. The case could undo the “significant nexus” definition in the rule. The court’s ruling is expected in 2023. Given the conservative majority of the court, they will likely rule against the EPA.
Photo by Igor Oliyarnik on Unsplash