The Biden administration has finalized a new interpretation of “waters of the United States” that officially restores many federal protections for waterways that were in place for decades but were altered various times by subsequent presidents beginning in 2015.
The Clean Water Act regulates the discharge of pollutants into what lawmakers who drafted the law ambiguously identified as “waters of the United States.” That definition defines the limit of the federal government’s reach into pollution regulation.
EPA administrator Michael Regan said the updated definition was the result of engagement with parties that would be affected by its implementation.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” Regan said. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”
Environmental and health groups welcomed the administration’s move, but farming organizations and trade groups for many other potentially polluting industries opposed the decision, which could make them and others responsible for undertaking costly permitting and mitigation efforts.
“This rule tracks the familiar framework that the agencies have applied for decades to protect our nation’s waters,” said Stuart Gillespie, senior attorney with Earthjustice. “The agencies grounded their approach in the scientific record, which underscores that many waters are connected and thus must be protected to safeguard downstream communities and the environment. The rule also resoundingly rejects the Trump-era approach, which unlawfully and unscientifically rolled back Clean Water Act longstanding protections.”
American Farm Bureau Federation president Zippy Duvall, whose organization supported the Trump administration approach, said the organization was “extremely disappointed” in the new rule.
“Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land,” Duvall said in a press release.
THE TURBULENT “WATERS OF THE UNITED STATES”
The definition of “waters of the United States” has changed in stutters over the past eight years, creating uncertainty that has affected the health and livelihood of Hoosiers.
Between 1986 and 2015, the WOTUS definition included seven categories of waterways under federal protection, the bounds of which were limited by several lawsuits that reached the U.S. Supreme Court.
The Obama administration attempted to expand the list of waters protected by the federal government by implementing the “Clean Water Rule” in 2015. The rule included waterways adjacent to traditional navigable waterways, case-specific waterways and tributaries that provide chemical, physical or biological functions to downstream waters.
A coalition of states, including Indiana, sued to stop the rule’s implementation. A federal court granted an injunction in 2018 saying the rule would cause “loss of sovereignty” and “irreparable harm.” The rule was not implemented in Indiana and 27 other states.
The jurisdictional expansion attempted by the Obama administration was followed by a contraction. The Trump administration wrote its own limited definition, the Navigable Waters Protection Rule, in 2020, and fully repealed the Obama rule.
The rule bucked the EPA’s own science-backed conclusion about the interconnectivity of waterways and limited federal protections to just four categories of waterways: territorial seas and navigable waters; perennial and some intermittent tributaries; some lakes, ponds and impoundments; and wetlands directly adjacent to jurisdictional waters.
Farmers, builders and many other interests that were relieved of financial burdens and federal environmental responsibilities supported the NWPR and the repeal of the 2015 rule, saying it restored property rights taken away by “the largest land grab in the history of this country.”
The Trump EPA relied on “dubious methodology” when weakening federal protections for waterways, including assuming that states would fill in the gaps left by the federal government by writing their own laws to protect waterways.
The opposite happened in many states, including Indiana.
In Indiana, the NWPR resulted in members of the Indiana Builders Association who also served as state senators successfully pushing through a bill that eliminated state protections for more than half the state’s remaining wetlands and weakened the protections that remained.
Officials from around the state predicted the repeal of state protections for wetlands would negatively affect water quality in the state, increase flooding and cost communities millions of dollars to replicate the natural wetland features that would be destroyed if those wetlands were developed.
The Indiana Wetlands Task Force established as part of the law found that the worst effects of the repeal were avoided due to changes in federal regulations, but the law caused the increased loss of isolated wetlands found on farmland.
“This change has provided short-term economic benefit to farmers and developers at the cost of long-term flooding issues,” the report concluded.
A federal judge in Arizona allowed the EPA, now headed by the Biden administration, to voluntarily withdraw the rule in 2021.
BIDEN’S “WATERS OF THE UNITED STATES”
The Biden administration’s “waters of the United States” definition keeps the seven categories of waterways in place prior to 2015, including ephemeral streams and other waterways that have a “significant nexus” to navigable waterways.
The term “significant nexus” is a test put in place by former Justice Anthony Kennedy in a 2006 Supreme Court ruling to determine which waterways could be considered “waters of the United States.”
The rule and the “significant nexus” test could be altered by the majority right-wing Supreme Court in an upcoming decision for Sackett v. Environmental Protection Agency, a case brought by an Idaho couple in a protracted legal battle with the EPA since 2007.
The couple, Michael and Chantell Sackett, attempted to develop land determined to be a wetland protected by the Clean Water Act in 2004. The couple received local permits but failed to get the necessary permits from the federal government. The EPA told the couple they would face a $40,000-a-day fine if they refused to restore the property to its original state.
The couple sued, challenging the EPA’s authority to regulate their land under the Clean Water Act. The case made its way to the Supreme Court in 2012, and the Court ruled the couple could litigate the order in federal court.
The case returned to federal court, which ruled in favor of the EPA. The ruling was upheld by a federal appeals court.
The 2021 case now being reviewed by the Court seeks to repeal the “significant nexus” test and limit Clean Water Act jurisdiction to “relatively permanent, standing or continuously flowing bodies of water” as determined by the Court’s conservatives in the same case that gave the nation the “significant nexus” test.
The decision is expected later this year.