A Lesser Golden Plover sits in a section of wetland June 4, 2006 in Barrow, Alaska. Officials from the U.S. Department of Agriculture are preparing to test migratory birds arriving from Asia for Avian Influenza. Photo by Justin Sullivan.

By Jacob Fischler
Indiana Capital Chronicle

U.S. — A federal rule limiting agencies’ power to regulate water pollution will severely restrict protections for waters and wetlands throughout the country, but could also be subject to challenges from conservative groups that maintain the new rule exerts more federal jurisdiction than the U.S. Supreme Court intended in a May decision.

With the rule published Tuesday to redefine which “waters of the United States,” or WOTUS, are covered under the Clean Water Act, the U.S. Environmental Protection Agency and Army Corps of Engineers aimed to bring the federal definition in line with the Supreme Court’s ruling this year narrowing the scope of federal power.

In a 5-4 decision, the court held the federal government can only regulate waters with “a continuous surface connection” to the types of navigable waters indisputably covered by the Clean Water Act.

The revised rule, which will take effect when it is published in the Federal Register in the coming days, removes the “significant nexus” standard that the court invalidated in the Sackett v. EPA case in May.

It also removes federal jurisdiction from wetlands that cross state lines and revised the definition of “adjacent” to mean “having a continuous surface connection,” which is consistent with Justice Samuel Alito’s majority opinion.

The new definition is broader than some expected, said Ashley Peck, an attorney with Holland and Hart LLP’s water practice, because the Sackett case was only about wetlands, but the agencies removed the significant nexus test for all waters. The EPA likely determined it would reduce future court battles by applying the ruling beyond wetlands, she added.

Environmental groups and Democrats in Congress described the updated rule as a faithful execution of the court ruling – even as they said the policy would remove protections from millions of acres across the country.

But key congressional Republicans and conservative legal groups said Tuesday and Wednesday the update resulted from a rushed process and overlooks major criteria the court outlined.

The new definition could impact millions of stream-miles and undermine the main goal of the Clean Water Act, Tannis Fox, a senior attorney with the legal group Western Environmental Law Center, said in a Wednesday interview.

Rick Larsen, a Washington Democrat who is the ranking minority member on the House Transportation and Infrastructure Committee, said in a Tuesday statement he applauded the agencies’ work but disagreed with the court’s decision.

Meanwhile, conservative legal activists and leading Republicans on key congressional committees called the rule an attempt to do the bare minimum required under the Sackett decision.

In a Tuesday statement, House Transportation and Infrastructure Chairman Sam Graves, a Missouri Republican, and Water Resources and Environment Subcommittee Chairman Dave Rouzer, a North Carolina Republican, said the revised rule “barely pays lip service” to the court’s decision. They implied the agencies should have started from scratch with a new rule, rather than merely adjusting a definition.

The agencies said they skipped a more thorough rulemaking process because they were only doing as the court instructed.

“Because the sole purpose of this rule is to amend these specific provisions of the 2023 Rule to conform with Sackett, and such conforming amendments do not involve the exercise of the agencies’ discretion, providing advance public notice and seeking comment is unnecessary,” the rule’s preamble reads.

The expedited process was appropriate, Peck said, because the court decision that invalidated existing agency regulations put “jurisdictional determinations at a standstill,” she said. Developers and others who need federal approvals are still waiting, she said.

The agencies “tried to hue closely to the decision,” she added.

But Damien Schiff, who successfully led the challenge to the WOTUS rule in the Sackett case as a senior attorney at the conservative Pacific Legal Foundation, , said the revised definition missed basic parts of court decision. Holding a normal public comment period would have prevented the agencies from advancing a flawed rule, he said.

Schiff said the agencies correctly disregarded the significant nexus test.

The EPA and Army Corps “failed to accurately articulate” new criteria to replace the discarded significant nexus test, Schiff said.

The thrust of the majority opinion in the Sackett case was that only natural water features that could be reasonably described as streams, creeks or rivers could be considered waters of the United States, but the new definition doesn’t fully exclude things like human made ditches, he said.

And despite the rule’s preamble specifically noting that Sackett requires a surface connection between a wetland and a covered water for the wetland itself to be covered, the court actually went beyond that, Schiff said. Alito’s opinion would have required wetlands to be indistinguishable from covered waters, he said.

While congressional Republicans and others have for years criticized WOTUS rules, which have changed with considerable frequency in the past decade with changing presidential administrations and court decisions. The changes leave interested parties unsure of how to plan for building projects that can take years.

The Sackett decision and regulatory update puts more pressure on states that want to maintain strong protections for waters and wetlands no longer covered by federal agencies. Other states may seek to dilute protections.