WASHINGTON — The Biden administration is working to perfect clean water regulation ahead of a Supreme Court ruling that could complicate the government’s ability to protect wetlands and other bodies of water.
The Environmental Protection Agency’s rule, to be finalized on Friday, essentially reverts protections for millions of streams, marshes and other bodies of water to levels that existed before the government. Obama made major changes in 2015, resulting in nearly a decade of political and legal disputes.
With the Supreme Court expected to rule next year in a possible major case reduced government authority to regulate wetlands, experts call the move of the Biden administration strategic. Now, getting a rule on the books gives the EPA more of an opportunity to lock down, at least for a while, a broad definition of which waterways qualify for federalization. protected under the Clean Water Act.
Kevin S. Minoli, a partner at Alston & Bird who has served as an EPA advisor to Clinton, Bush, Obama and Trump, said: “If the Supreme Court moves first, the agency cannot be complete. a rule beyond it. government. By issuing a rule in advance, he said, the government has “more room to interpret” the court’s decision when it is made.
Under the new rule, the EPA has revived the definition of what constitutes “seas of the United States” that has existed since 1986, describing the definition as “familiar” and the foundation for decades of progress. about clean water. In a statement, the agency said the changes imposed by the Obama administration, the subsequent reversal of the Trump administration and a number of legal battles between the two sides, had “harmed communities and our nation’s waters.”
The Biden Administration’s Environmental Agenda
The new rule includes a number of changes, officials said, including provisions clarifying which bodies of water are excluded from the regulation, such as certain agricultural lands. The rule is also intended to simplify a test to determine if a stream or wetland is in federal jurisdiction based on its distance from a tributary of a large body of water. than.
Radhika Fox, the EPA’s assistant administrator at the water office, said in an interview that the rule would be finalized by Friday and would not be followed by further sweeping amendments. While the agency could suggest “improvements,” she said, the administration is not currently planning a major second phase.
Ms. Fox said she hopes the new rule will end the battle between environmental groups and farmers, ranchers, fossil fuel developers and real estate agents over the types of waterways that qualify for federally protected under the Clean Water Act.
“I think we found a middle ground that creates as much clarity as possible,” she said. “I hope that this is something that will stand the test of time.” She declined to comment on the Supreme Court case, citing active litigation.
The new rule is also seen by many as a test for Michael Regan, the EPA’s administrator, who has vowed to develop what he calls a “pragmatic” approach to water rules.
The Obama-era rule has been criticized by Republicans for being too restrictive and making it difficult to do business. President Trump repealed it and imposed his own rule, which environmentalists see as a gift to home builders, farmers and ranchers.
In 2021, a federal judge overturned Trump’s rule, leaving the legal landscape in limbo.
Meanwhile, the Supreme Court case was underway. The case, Sackett v. Environmental Protection Agency, involving an Idaho couple, Michael and Chantell Sackett, who sought to build a home in the state’s panhandle. After they began construction preparations in 2007, the Sacketts were stopped by the EPA, which said the property included a federally protected wetland.
The agency ordered them to stop and return the property to its original condition or face fines. Instead, the couple sued the agency, and the dispute over whether the case was premature was taken to the Supreme Court in an earlier appeal. In 2012, the judges ruled that the case may proceed. The court heard the oral arguments this summer, and the case has become a rallying cry for property rights advocates and other environmental regulation opponents.
Damien M. Schiff, an attorney with the Legal Organization of the Pacific representing the Sacketts, said he does not believe the EPA’s regulation will affect the outcome of his client’s case. He also noted that if the court rules in favor of the Sackett family, the EPA may have to amend its rule. “It’s really just a temporary measure,” he said of the rule.
William W. Buzbee, a professor of environmental and constitutional law at the Georgetown University Law Center, says that the new rule, because it goes back to a set of widely understood approaches, has helped shed light on the legal confusion over the years. But he said that would not end disputes over what constitutes a federally protected waterway.
“This regulation applies to the extent of people’s efforts to construct large buildings and real estate developments,” Mr. Buzbee said. “It is inherently an area where a lot of money is at stake. Perhaps no matter what, there will still be conflicts.
