Bowing to the Inevitable
The Supreme Court declared open season on the nation’s streams and wetlands. Recent regs are the result.
On August 25, EPA and the Army Corps of Engineers (“the agencies”) issued a joint rule, which modifies their previous rule on federal jurisdiction under the Clean Water Act as a way to conform with the Supreme Court’s Sackett decision. Sackett was a deeply misguided and harmful ruling — however it is nevertheless the law. The agencies’ latest rule attempts to sync their existing approach with the Sackett decision while doing no more damage than needed to the environment.
The brand new rule doesn’t change federal jurisdiction over navigable or interstate waters. Navigable remains to be defined fairly broadly, to incorporate waters which might be “currently used, or were used up to now, or could also be liable to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide.”
Consistent with Sackett, the brand new regulation drastically limits the varieties of streams, lakes, and wetlands subject to federal jurisdiction:
- Federal jurisdiction can’t be based solely on the importance of the hydrological connection between a wetland or stream and a navigable/interstate waterway.
- Wetlands that straddle state lines aren’t any longer covered.
- Tributaries of interstate/navigable waters are covered only in the event that they are “relatively everlasting, standing or repeatedly flowing bodies of water.”
- A wetland is roofed provided that it has a “continuous surface connection” with an interstate/navigable water or its tributaries.
- Intrastate lakes and ponds are also covered only in the event that they are “relatively everlasting, standing or repeatedly flowing bodies of water with a continuous surface connection” to navigable/interstate waters.
Notably, the revised regulation doesn’t try and define key terms utilized by the Supreme Court akin to “continuous surface connection” or “relatively everlasting.” (The latter term is most significant within the West, where many water bodies dry up at times.) As an alternative, it leaves the applying of those terms to the discretion of the lower-level officials answerable for enforcing the Clean Water Act, who hopefully do what they will to use these terms in a way that minimizes environmental destruction.
In Sackett, the Supreme Court faced a alternative. It could uphold a scientifically sound approach to achieving the goals of the Clean Water Act, thereby stopping water pollution, preserving key ecological systems, and mitigating flood risks. Or it could seek the advice of its favorite dictionaries (here, Webster’s 2nd and a few others chosen at random), and revert to archaic conceptions of federal authority. Sadly but predictably, the Court selected the second option.
As I’ve discussed in an earlier post, I do think there are another available mechanisms to limit the damage. But when it comes to defining federal jurisdiction under the Clean Water Act, the agencies didn’t have much alternative. Hopefully, this can a minimum of temporarily slake the will of conservatives to trash our nation’s wetlands and streams within the name of property rights.
Congressional Republicans are apparently talking about using the Congressional Review Act block this latest regulation because they think it doesn’t do enough to adapt to the Court’s ruling. Aside from the undeniable fact that Biden would inevitably veto this effort, it’s a very misguided idea. The regulation simply amends parts of a previous rule to make it conform to the Supreme Court’s decision. If Congress were to overturn the regulation, the Congressional Review Act prohibits the agencies from ever doing the identical thing again. In other words, they’d never be allowed to bring those parts of the sooner rule into conformity with the Court’s decision. For individuals who agree with the Court, that will be a crazy consequence.