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The Biden administration issued new rules to abide by a May Supreme Court ruling that narrowed the scope of the Clean Water Act. But critics say the changes didn't go far enough.
The decades-long fight over the scope of the federal Clean Water Act looked like it might finally be resolved when the Supreme Court in May massively scaled back the number of wetlands subject to the pollution restrictions. But this week, the conflict flared up again.
The Environmental Protection Agency updated its water pollution rules Tuesday in response to the high court decision, effectively reducing the amount of wetlands in the country protected by federal law by half.
EPA Administrator Michael Regan said the agency “moved quickly to finalize” the revisions to bring its rules into compliance with the court decision in Sackett v. EPA. That meant skipping the normal process of asking for public input, he said, because the agency’s changes were only meant to bring its regulations in line with the Supreme Court decision.
The core issue in the Sackett case was what kinds of wetlands are considered “waters of the United States,” which makes them subject to federal regulation. A conservative majority of the court determined that the wetlands have to be “adjoining” to bigger bodies of water to be governed by the Clean Water Act.
While the EPA’s new rules incorporate that change, they don’t address other criticisms that county officials, farmers, roadbuilders and Republican lawmakers had with the Biden administration’s original rules for determining where the Clean Water Act applies.
“EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states and tribes protect the clean water upon which we all depend,” Regan said in a statement.
But critics say the move still won’t help landowners know whether their property is governed by the Clean Water Act.
Dave Bauer, the president and CEO of American Road & Transportation Builders Association, blasted the EPA’s approach.
“After eight years of litigation, five contradictory regulatory actions spanning three administrations, hundreds of thousands of public comments and one Supreme Court decision, EPA’s rule spurns the opportunity to deliver a lasting solution to protect the nation’s wetlands and brazenly hands this responsibility back to the courts,” he said in a statement. “We are back to Square One.”
Prianka Sharma, ARTBAs’ vice president and counsel for regulatory affairs, explained in an interview that, even after the new changes, the Biden administration rules don’t spell out many of the terms it uses for determining whether certain geographic features fall under the Clean Water Act. The rules, for example, would cover tributaries that are “relatively permanent, standing or flowing bodies of water.” Roadside ditches don’t fall under federal pollution rules—but only if they are “excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.”
“If the test is ‘relatively permanent,’” Sharma asked, “what does that mean? What’s the standard? What’s happening now is, this is being applied on a case-by-case basis. There’s no clear mechanism for anyone to determine what it means.”
Mark Ritacco, the chief government affairs officer for the National Association of Counties, said the group was “happy” to see EPA scale back the scope of waters governed by the Clean Water Act but was concerned by the “lack of clarity” that remained.
Beyond that, county officials are also disappointed that the Biden administration didn’t work with states and local governments before issuing a new rule, Ritacco said. County governments have a lot at stake, he explained, because they are both regulators and subject to the regulations (as owners of roadside ditches or drinking water systems).
“We understand the need to move quickly to put out a new rule to provide certainty, but we really wish that the EPA would have accepted comments from local governments and specifically counties on the rule. We’re concerned with the lack of public comment but also with the lack of a federalism consultation,” Ritacco said.
The rules that the EPA amended are relatively new. The Biden administration put them into place in January of this year. But, Ritacco said, “the consultation process for the previous iteration was also lacking.”
“Had that consultation occurred, we could have provided EPA our perspective on how to more narrowly define a ‘relatively permanent’ waterway and what those look like in counties across America,” he said.
On Capitol Hill, Republicans ripped the Biden administration’s updates.
“Unfortunately, the Biden administration’s revised rule barely pays lip service to the Sackett decision," said U.S. Rep. Sam Graves, a Missouri Republican who chairs the transportation and infrastructure committee, and U.S. Rep. David Rouzer, a North Carolina Republican who leads a subcommittee on water resources and the environment, in a joint statement.
“The court was clear that Clean Water Act overreach is illegal. The administration is now trying to make Sackett fit with a rule that never should have been issued in the first place. This revised rule ignores fundamental concerns laid out in Sackett and is a missed opportunity to finally end long-standing confusion over what constitutes a [water of the United States],” they said.
U.S. Sen. Shelley Moore Capito of West Virginia, the top Republican on the Environment and Public Works Committee, said the Biden administration “continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans.”
“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” she said.
House Democrats said the controversy over the rule shows Congress needs to define what types of waterways should be subject to the Clean Water Act.
“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,” said U.S. Rep. Rick Larsen of Washington state, the top Democrat on the House transportation committee.
“Clean water should not be a partisan issue; yet, when five conservative members of the Supreme Court decided to ignore the law, to ignore the science, and to ignore over 50 years of success in protecting clean water, they placed at risk decades of progress in cleaning up our rivers, streams and coastlines,” said U.S. Rep. Grace Napolitano, a California Democrat. “With today’s rule, the Biden administration has done what it can to protect our waters and wetlands and provide some legal clarity. However, Congress will need to finish the job to ensure our families and future generations continue to have the same access to clean water, regardless of zip code.”
Daniel C. Vock is a senior reporter for Route Fifty based in Washington, D.C.
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