Biden forced to scale back federal jurisdiction over waterways following Supreme Court ruling


The Biden administration on Tuesday reined in federal authority over millions of acres of small waterways like streams and wetlands across the country, a move that Biden officials said they were begrudgingly forced to adopt because of a Supreme Court ruling.

The conservative-leaning high court in May limited the ability of the EPA and U.S. Army Corps of Engineers to regulate water pollution under the Clean Water Act unless a body of water has “continuous surface connection” to oceans or rivers, siding with property rights over broader enforcement of environmental regulations in a case known as Sackett v. EPA.

Farmers, land developers, energy producers and Republican lawmakers feared clean water regulations would be overreaching and allow the federal government to claim authority over virtually any body of water, no matter how small.  

EPA Administrator Michael Regan said Tuesday he was “disappointed” by the court’s decision, but that the EPA and Army “have an obligation to apply this decision” to the administrations’ recently implemented rule governing “waters of the United States” and how it applies to clean water protections.

“EPA will never waver from our responsibility to ensure clean water for all,” Mr. 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.”

Sackett v. EPA centered on an Idaho couple who took the U.S. to court after the federal government said they required permits to construct a home on property that included water-logged land near a lake. Officials claimed the soggy area was a wetland and thereby required approval to develop.

Despite weakening the administration’s water rule and limiting the types of waterways under its authority, the Waters Advocacy Coalition, composed of 40-plus groups against the clean water regulation, accused the administration of having “chosen to ignore” the high court’s ruling.

“The administration is proving again that it does not understand that categorizing land or water features as non-federal waters does not mean that they are unprotected and that it intends to broaden the scope of the federal government’s power — even if it defies the law,” said Waters Advocacy Coalition Chair Courtney Briggs.

Mr. Briggs further chastised the EPA and Army Corps of Engineers for not allowing public input on the changes. Federal agencies typically receive public comments when considering new regulatory policies across the federal government, a process the EPA skipped this time.

Meanwhile, the League of Conservation Voters, an environmental group, blamed the Supreme Court for the weakened protections. Deputy Legislative Director Madeleine Foote said Congress should increase clean water safeguards under the Clean Water Act, and accused the court of having a “disregard of science, the law and basic commonsense to put the profits of polluters ahead of the health of our communities.”

Congress wrangled over the EPA’s new “Waters of the United States” rule earlier this year, eventually forcing a veto on the subject from President Biden following bipartisan votes against the measure in the House and Senate. The two chambers passed GOP-led legislation in the spring to roll back EPA’s authority, which garnered the support of nine House Democrats and four Senate Democrats. Independent Sen. Kyrsten Sinema of Arizona, who caucuses with Democrats, also sided with Republicans.

Congress was unable to muster the required two-thirds majority to override Mr. Biden’s veto.


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