Ahead of Major Court Case, E.P.A. Revises Clean-Water Protections

WASHINGTON — The Biden administration is working to complete a clean water regulation before a Supreme Court ruling that could complicate the government’s ability to protect wetlands and other waters.

The Environmental Protection Agency rule, which will be finalized on Friday, essentially reverts protections for millions of streams, marshes and other bodies of water to levels that existed before the Obama administration made major changes in 2015, leading to nearly a decade of political and legal disputes.

With the Supreme Court expected to rule next year in a major case that could reduce the government’s authority to regulate wetlands, experts called the Biden administration’s move strategic. Getting a rule on the books now gives the E.P.A. a greater chance of locking in, at least for a while, a broad definition of which waterways qualify for federal protection under the Clean Water Act.

“If the Supreme Court goes first, then the agency can’t finalize a rule that goes beyond it,” said Kevin S. Minoli, a partner at Alston & Bird who served as an E.P.A. counsel in the Clinton, Bush, Obama and Trump administrations. By issuing a rule first, he said, the government has “more room to interpret” the court decision when it comes.

Under the new rule, the E.P.A. revived a definition of what constitute “waters of the United States” that had been in place since 1986, describing the definition as “familiar” and foundational to decades of clean-water progress. In a statement, the agency said the changes imposed by the Obama administration, a subsequent reversal by the Trump administration and several legal battles in between, had “harmed communities and our nation’s waters.”

The Biden Administration’s Environmental Agenda

  • Spending Bill:  Congress has proposed $1 billion to help poor countries cope with climate change, a figure that falls far short of President Biden’s promise of $11.4 billion annually by 2024.
  • Climate Adaptation Policy: The Interior Department is giving money to Native American tribes to help them relocate away from areas that are vulnerable to climate change, potentially creating a model for other communities around the country.
  • Establishing Safeguards: The Biden administration is working to avoid waste and abuse in the delivery of $370 billion in new federal subsidies for electric vehicles and other clean energy technologies.
  • Mail Trucks: In a win for the Biden administration, the United States Postal Service said it would spend nearly $10 billion to create one of the largest electric truck fleets in the nation.

The new rule includes some changes, officials said, including provisions that clarify what bodies of water are excluded from regulation, such as certain agricultural lands. The rule also aims to simplify a test to determine whether a stream or wetland is subject to federal jurisdiction based on its distance from a tributary of a larger body of water.

Radhika Fox, the E.P.A.’s assistant administrator in the office of water, said in an interview that the rule being finalized on Friday and would not be followed by extensive further revisions. While the agency may propose “refinements,” she said, the administration is not currently planning a major second phase.

Environmentalists in front of the Supreme Court building at the start of the court’s latest term in October.Credit…Michael Reynolds/EPA, via Shutterstock

Ms. Fox said she hoped the new rule would put an end to the battles between environmental groups and farmers, ranchers, fossil fuel developers and real estate agents over the types of waterways that qualify for federal protection under the Clean Water Act.

“I think we have found a middle ground that creates as much clarity as possible,” she said. “I am hopeful that this is the one that will stand the test of time.” She declined to comment on the Supreme Court case, citing active litigation.

The new rule has also been widely viewed as a test for Michael Regan, the administrator of the E.P.A., who had vowed to develop what he called a “pragmatic” approach to water rules.

The Obama-era rule had come under fire from Republicans as overly restrictive and onerous to business. President Trump repealed it and imposed his own rule, which environmentalists cast as a giveaway to home builders, farmers and ranchers.

In 2021 a federal judge struck down the Trump rule, leaving the regulatory landscape in limbo.

Meanwhile, the Supreme Court case has been moving forward. The case, Sackett v. Environmental Protection Agency, involves an Idaho couple, Michael and Chantell Sackett, who sought to build a house in the state’s panhandle. After they began preparing for construction in 2007, the Sacketts were stopped by the E.P.A., which said the property included a federally protected wetland.

The agency ordered them to stop and return the property to its original state or face fines. The couple instead sued the agency, and a dispute about whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the suit could proceed. The court heard oral arguments this summer and the case has become a rallying cry for property rights advocates and other opponents of environmental regulation.

Damien M. Schiff, a lawyer with the Pacific Legal Foundation, which represents the Sacketts, said he did not believe the E.P.A. rule would affect the outcome of his clients’ case. He also noted that if the court ruled in favor of the Sacketts, the E.P.A. would likely have to make revisions in its regulation. “It really is just a stopgap measure,” he said of the rule.

William W. Buzbee, an environmental and constitutional law professor at Georgetown University Law Center, said that the new rule, because it returns to a broadly understood set of approaches, helped clear up the past several years of legal confusion. But he said that wouldn’t end disputes over what constitutes a federally protected waterway.

“This statute applies down at the level of people’s efforts to build buildings and do big real estate developments,” Mr. Buzbee said. “It’s inherently an area where there is a vast amount of money at stake. Probably no matter what there will still be conflicts.”

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