EPA scales back federal wetland protections to comply with Supreme Court order

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday. It was originally published there under the headline ‘Following the Law.’

Federal rules codifying which waterways are afforded Clean Water Act protections under the “Waters of the United States,” or WOTUS, rule have been changed once more, continuing a back-and-forth regulatory saga shaped by presidential administration changes and court rulings going back at least a decade.

The federal agency that administers the Clean Water Act, the U.S. Environmental Protection Agency, announced Tuesday that it amended its WOTUS definition to comply with the Sackett v. EPA decision the U.S. Supreme Court issued in May. The lawsuit focused on whether a couple who owned property in Idaho that included a wetland could fill it to build a home on it; the Supreme Court said they could.

In a press release about the new rule, EPA Administrator Michael Regan said the new rule will “provide a clear path forward” for the U.S. Army Corps of Engineers, which is charged with determining which specific waterways are jurisdictional for permitting and enforcement purposes.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” Regan said. “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.”

The rule strikes the “significant nexus” test, which had held that wetlands were afforded federal pollution protections if they significantly affected the chemical, physical or biological integrity of “traditional navigable waters” — i.e., those that were explicitly protected when Congress passed the Clean Water Act in 1972. Instead, wetlands now must maintain a “continuous surface connection” with a protected waterway to be subject to federal regulation under WOTUS. 

Under the new rule, 1.2 to 4.9 million miles of ephemeral streams are expected to lose protection, as well as up to 63% of the nation’s wetland acreage.

Upper Missouri Waterkeeper Executive Director Guy Alsentzer said in an interview that the new rule threatens the clean water that’s integral to Montana’s outdoor heritage and outdoor economy. He expects the resulting “vacuum” will give courts an opportunity to test the strength of state-level environmental protections codified in the Montana Constitution and the Montana Water Quality Act.

“We have those tools, the problem is that nobody has meaningfully enforced them,” Alsentzer said. “We have to do better now.”

The rule was better received by the Montana Stockgrowers Association Executive Vice President Raylee Honeycutt, who said it will affirm the Sackett ruling curtailing EPA overreach.

“The revisions to the WOTUS definition in EPA’s final rule is an important step toward bringing the EPA more in line with the Supreme Court’s ruling,” Honeycutt said in a written statement to MTFP. “MSGA will continue to work to protect Montana ranchers from burdensome regulations and ensure certainty on WOTUS.”

The rule goes into effect immediately. The EPA will host a webinar to explain it further Sept. 12.