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EPA Revises Expansive Water Regulation To Comply With SCOTUS But Doesn’t Allow Public Comment

The Environmental Protection Agency (EPA) revised its “waters of the United States” (WOTUS) rule Tuesday in response to a recent Supreme Court ruling that scaled back the agency’s ability to regulate under the Clean Water Act (CWA) but did not offer an opportunity for public comment on the change.

In May, the Supreme Court ruled in favor of an Idaho couple that alleged the EPA overstepped its authority when it prevented them from building a home on their own land because it contained wetlands, finding the CWA applies to only wetlands that are “as a practical matter indistinguishable from waters of the United States” and maintain a “continuous surface connection.” In response, the EPA and Army Corps of Engineers amended the new WOTUS rule previously issued in January, which expanded “wetlands” subject to regulation under the CWA, to remove aspects “invalid” under Sackett v. EPA, according to the Tuesday announcement.

“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,” said EPA Administrator Michael S. Regan in a statement. “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.”

The agency revised the rule to “remove the significant nexus standard and to amend its definition of ‘adjacent,’” noting the provisions “are invalid under the Supreme Court’sinterpretation of the Clean Water Act in Sackett.” However, the agency did not allow public comment for the revised definition that some say does not fully meet the standard set by the Supreme Court.

“The entire process has been disgraceful starting with the agencies finalizing the January rule even though they knew the Supreme Court was going to be issuing an opinion that would likely render most of its rule moot,” Competitive Enterprise Institute Center for Energy and Environment Director Daren Bakst said in a statement. “That’s exactly what happened.”

“Now the agencies are trying to fix their flawed rule to comply with the Sackett v. EPA decision,” Bakst continued. “When the underlying rule is broken, putting lipstick on it doesn’t change the fact that it is still broken. And they are not even allowing the public to have a voice in the process to help make the rule consistent with Sackett.”

Republican Missouri Rep. Sam Graves, who chairs the Transportation and Infrastructure Committee, and Republican North Carolina Rep. David Rouzer, who chairs the Water Resources and Environment Subcommittee, said in a statement that the revised rule “barely pays lip service to the Sackett decision.”

“The Court was clear that Clean Water Act overreach is illegal,” they wrote. “The Administration is now trying to make Sackett fit with a rule that never should have been issued in the first place. This revised rule ignores fundamental concerns laid out in Sackett and is a missed opportunity to finally end longstanding confusion over what constitutes a WOTUS.”

The EPA did not immediately respond to a request for comment.

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