The Environmental Protection Agency (EPA) announced a new Waters of the United States (WOTUS) rule in response to a May Supreme Court ruling that curtailed which waters are subject to federal Clean Water Act protections.
The revised WOTUS rule breaks from longstanding federal waters protections to require that protected wetlands have a clearer link to waterways like oceans and rivers.
The new post-Sackett rule revises the January definition to remove the “significant nexus” standard that was the basis of the earlier rule. It also says wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways as required by the Sackett ruling.
EPA Administrator Michael Regan said in a statement that the agency had no choice but to narrow the rule’s scope following the Sackett v. EPA decision, in which the Supreme Court’s conservative majority wrote that protections could only apply where there is a “continuous surface connection” to a protected body of water.
“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,” said EPA administrator Michael Regan.
“We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. 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.”
National Mining Association (NMA) President and CEO Rich Nolan commented on behalf of the organization on industry impact.
“Earlier this year, the U.S. Supreme Court provided an important check to the federal government’s jurisdiction over water and land features. Now, just three months later, the administration returns with a revised WOTUS rule that perpetuates prior government overreach, infringing on state authority, and disregarding the court’s call for clarity, creating more regulatory confusion and uncertainty when just the opposite is needed,” he said.
“Given the soaring demand for mined materials and the need for domestic production to both help meet that demand and secure the nation’s supply chains, this rule was an opportunity to advance a regulatory framework that would support the development of strong domestic supply chains; instead, it has created a new obstacle. The mining industry is committed to protecting our nation’s treasured water resources and we support responsible regulatory efforts to achieve that end, but this rule simply misses the mark by irresponsibly ignoring the intent of the Supreme Court.”