EPA announces new waters rule after Supreme Court decision weakening protections

The Environmental Protection Agency (EPA) on Tuesday announced a new rule that could curtail protections from more than 60 percent of protected lands, in response to a May Supreme Court ruling that curtailed which waters are subject to federal Clean Water Act protections.

The revised Waters of the United States (WOTUS) rule breaks from longstanding federal waters protections to require that protected wetlands have a clearer link to waterways like oceans and rivers.  

EPA Administrator Michael Regan said in a statement that the agency had no choice but to narrow the rule’s scope following the Sackett v. EPA decision, in which the Supreme Court’s conservative majority wrote that protections could only apply where there is a “continuous surface connection” to a protected body of water.

The decision marked the second consecutive term in which the court sided against federal environmental protections. In 2022, it ruled against an Obama-era EPA plan that Biden sought to continue, which would transition power plants off of fossil fuels under the Clean Air Act.

“We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all,” Regan said in a statement. “Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”

The court handed down its Sackett v. EPA ruling months after the agency finalized an earlier WOTUS rule that significantly strengthened Trump-era regulations. Republican governors in January called for the administration to delay implementation of that earlier rule until the court could issue its decision. 

The National Wildlife Federation called the new rule inadequate in a statement, characterizing it as a consequence of the court’s positions on environmental protections.

“This rule spells out how the Sackett decision has undermined our ability to prevent the destruction of our nation’s wetlands, which protect drinking water, absorb floods and provide habitat for wildlife,” Jim Murphy, the National Wildlife Federation’s director of legal advocacy, said in a statement. “Congress needs to step up to protect the water we drink, our wildlife, and our way of life. In the meantime, it will be up to the states to fill the gaping hole in water protections created by the Supreme Court.”  

But opponents of the original rule were displeased with the new proposal as well, with Sen. Shelley Moore Capito (R-W.V.), the top Republican on the Senate Environment Committee, saying it operates on the same principles the court rejected.

“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” Capito said in a statement. 

— Updated at 3:16 p.m.