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EPA reveals new wetland protection rule after Supreme Court limits federal power

The new decision removes federal protection from 63% of the nation’s previously protected wetlands

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A wetland area covers the landscape in east central North Dakota.

In this photo taken Thursday, June 20, 2019, a wetland area covers the landscape in east central North Dakota. On Tuesday, Aug. 29, 2023, the EPA announced new rules regarding wetlands protected under the Clean Water Act.

Charlie Riedel, Associated Press

Following the U.S. Supreme Court’s May decision, the Environmental Protection Agency revised wetland guidelines which could remove federal protection from 63% of the country’s wetlands, according to The Washington Post.

EPA Administrator Michael Regan stated on Tuesday that the agency had no choice after the high court “sharply limited” the federal government’s ability to regulate wetlands that “do not have a ‘continuous surface connection’ to larger, regulated bodies of water,” The Associated Press reported.

“While I am disappointed in the Supreme Court’s decision in the Sackett case, EPA and Army (Corps of Engineers) have an obligation to apply this decision alongside our state co-regulators,” Regan said in a statement via AP.

Sackett v. Environmental Protection Agency: The landmark decision was made during a case where an Idaho couple, Michael and Chantell Sackett, sought to develop property near Priest Lake in the Idaho panhandle but were stopped by the EPA.

The Sacketts began to develop by filling an area with concrete in 2007. However, the EPA ordered them to stop the operation, stating that they were violating the Clean Water Act, which prohibits placing pollutants in “the waters of the United States,” per Justia. The Sacketts and their lawyers sued the EPA, arguing that the wetland they were developing was not federally protected because there was dry land between the property and other bodies of water, according to the Natural Resources Defense Council.

In 2023, the Supreme Court sided with the Sacketts, which meant that the definition of the “waters of the United States” would change. On Tuesday, the FDA officially changed the definition only to include wetlands that have a “continuous surface connection to bodies that are ‘waters of the United States.’”

What’s new? The previous ruling protected wetlands under the Clean Water Act that included “traditional navigable waters, impoundments of qualifying water, tributaries to qualifying waters and wetlands adjacent to qualifying waters,” Reuters stated.

The new rule also removed the “significant nexus test,” which identified waters that “significantly affect the chemical or biological integrity of traditional navigable waters and interstate waters,” Reuters continued.

The finalized rule allows the U.S. Army Corps of Engineers to continue issuing jurisdictional determinations that were paused after the court’s decision, per CNN.