After Supreme Court Forces Its Hand, E.P.A. Curbs Wetlands Protection

Nov 09, 2023

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The agency curtailed pollution protections for millions of streams, wetlands and other bodies of water to comply with a Supreme Court decision.

By Lisa Friedman and Coral Davenport

The Biden administration on Tuesday lifted protections from pollution for millions of acres of wetlands, three months after the Supreme Court found that it lacked the authority to regulate them.

In May, the Supreme Court ruled that the federal government can no longer control discharges into wetlands near bodies of water unless they have “a continuous surface connection” to those waters.

That effectively made thousands of wetlands and waterways off limits to any government pollution controls because they do not connect directly to larger bodies of water.

Experts in environmental law said the decision in Sackett v. Environmental Protection Agency would leave many wetlands subject to pollution without penalty, and White House officials said it would jeopardize sources of clean drinking water.

Still, on Tuesday, the administration said it was abiding by that ruling by issuing a new regulation that essentially exempts millions of streams, marshes and wetlands from federal protection. Michael Regan, the E.P.A. administrator, said that neither he nor the head of the U.S. Army Corps of Engineers had any choice.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, E.P.A. and Army have an obligation to apply this decision,” Mr. Regan said in a statement. “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.”

In the Sackett case, the Supreme Court ruled unanimously that the E.P.A. and U.S. Army Corps of Engineers wrongfully claimed oversight of wetlands on the property of an Idaho couple, Chantell and Michael Sackett. It ruled that federally protected wetlands must be directly adjacent to a “relatively permanent” waterway “connected to traditional interstate navigable waters,” such as a river or ocean.

Yet the court was divided on an approach known as the “significant nexus” test that had been in place since 2006 to determine whether a specific waterway was protected. Under it, wetlands and streams were protected if they had a “significant nexus” — or scientific connection — to a navigable water.

The new E.P.A. rule removes the “significant nexus” test from consideration when identifying tributaries and other waters as federally protected.

The developers and farmers as well as gas, oil and coal companies that applauded the Supreme Court ruling said they were not satisfied with the way the E.P.A. relaxed its regulation. They argue that the new E.P.A. rule is confusing and does not comply with the Supreme Court’s direction. The National Mining Association said the regulation “misses the mark.”

Environmental groups criticized the new rule as leaving wetlands vulnerable to pollution, but directed their anger at the Supreme Court.

Madeleine Foote, the deputy legislative director for the League of Conservation Voters, said the regulation reflected “the Court’s disregard of science, the law, and basic common sense to put the profits of polluters ahead of the health of our communities.”

Lisa Friedman reports on federal climate and environmental policy from Washington. She has broken multiple stories about the Trump administration’s efforts to repeal climate change regulations and limit the use of science in policymaking. More about Lisa Friedman

Coral Davenport covers energy and environmental policy for the climate desk from Washington. She was part of a Times team that was a finalist for the Pulitzer Prize for distinguished public service journalism in 2020, and part of a Times team that received Columbia University’s John B. Oakes award for distinguished environmental journalism in 2018. More about Coral Davenport

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