The Washington PostDemocracy Dies in Darkness

Biden rule, heeding Supreme Court, could strip over half of U.S. wetlands’ protections

The Environmental Protection Agency and the Department of the Army finalized the new regulation to comply with a Supreme Court decision this year

The Fallon Paiute-Shoshone Tribal Wetlands in Fallon, Nev. (Salwan Georges/The Washington Post)
3 min

The Environmental Protection Agency said Tuesday that it has revised a key rule to comply with a sweeping Supreme Court ruling from this year, which could strip federal protections from up to 63 percent of the nation’s wetlands.

In a final rule issued Tuesday, the EPA and the Department of the Army changed parts of the previous definition of “waters of the United States” to align with the Supreme Court’s decision, which weakened the federal agencies’ power to regulate the nation’s waterways.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” EPA Administrator Michael Regan said in a news release Tuesday.

As a result of the decision, several types of waters will no longer be under federal protection, an EPA official said, including an estimated 1.2 million to 4.9 million miles of ephemeral streams. Up to 63 percent of wetlands by acreage in the United States could also be affected, the official added, citing mapping done by the Fish and Wildlife Service.

The issue that Sackett v. EPA brought before the Supreme Court was the scope of the Clean Water Act’s reach and how courts should determine what counts as “waters of the United States” under protection of the law. Nearly two decades ago, the court ruled that wetlands are protected if they have a “significant nexus” to nearby regulated waters.

In May, however, the court decided that the rule no longer applies and said the EPA’s interpretation of its powers went too far, giving it regulatory power beyond what Congress had authorized.

Writing for five justices of the court, Justice Samuel A. Alito ruled that the Clean Water Act extends only to “those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.” He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.

The EPA said the amendments announced Tuesday are limited and only change the parts of the previous rule that are invalid under the court’s decision. For example, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected, according to the agency.

“The exclusive purpose of the 2023 Rule was to define ‘waters of the United States,’ and this rule simply conforms that definition to Sackett,” the text of the final rule states.

The new rule takes effect immediately and is intended to help provide clarity around implementing the Clean Water Act following the court’s decision, according to Tuesday’s news release.

“EPA is doing what they have to do, and it’s not necessarily what they want to do,” said Julian Gonzalez, a water policy lobbyist at Earthjustice. But he added: “They can’t go rogue or anything when the Supreme Court hands down a decision.”

In a statement, Rep. Rick Larsen (Wash.), the ranking Democrat of the House Committee on Transportation and Infrastructure, praised the federal agencies for the effort to “quickly establish some clarity governing the waters in communities around the country which will allow critically important infrastructure projects to continue progressing.”

“However, ultimately Congress needs to step in and correct the egregious misreading of the Clean Water Act by the Supreme Court to ensure communities continue to have access to clean and safe water,” Larsen said.

Timothy Puko and Robert Barnes contributed to this report.