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clean water act
Complying With Right-Wing Supreme Court, Biden EPA Guts Wetland Protections
"Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action," said one advocate.
Aug 29, 2023
Under a U.S. Supreme Court ruling condemned by clean water advocates earlier this year, the Environmental Protection Agency on Tuesday announced a revised rule that could clear the way for up to 63% of the country's wetlands to lose protections that have been in place nearly half a century under the Clean Water Act.
EPA Administrator Michael Regan said he had been "disappointed" by the 5-4 decision handed down in Sackett v. Environmental Protection Agencyin May, but he was obligated under the ruling to issue a final rule changing the agency's definition of "waters on the United States."
As Common Dreams reported, the high court ruled in May that the Clean Water Act protects waters and wetlands that have a "continuous surface connection to bodies that are waters of the United States in their own rights," such as major rivers and coastlines.
Prior to the ruling, the Clean Water Act protected wetlands as long as they had a "significant nexus" to regulated waters, but the EPA rule removes that test from consideration when determining if a waterway should be protected. The rule will leave streams and tributaries—and the communities adjacent to them—without protections from pollution that can be caused by housing and business development, mining, pipeline construction, and a number of industries.
The ruling and resulting EPA rule reflected "the Supreme Court's disturbing pattern of striking down environmental regulations to serve industry interests," said environmental law group Earthjustice on Tuesday.
An EPA official toldThe Washington Post that an estimated 1.2 million to 4.9 million miles of ephemeral streams across the U.S. would immediately lose protections now that the final rule has been issued.
Julian Gonzalez, a water policy lobbyist with Earthjustice, told the Post that changing the rule is "not necessarily what they want to do" at the EPA, while Patrice Simms, the group's vice president of litigation for healthy communities, called the court's ruling a "politically motivated decision" that "ignores science and flies in the face of what almost everyone knows: that we all need clean water."
"The Supreme Court's right-wing supermajority's disastrous ruling in Sackett v. EPA reduced EPA's ability to protect our wetlands and waters from destruction and contamination," said Simms. "The new rule from EPA adjusts its existing regulations to comport with Sackett and reflects our dangerous new reality—one where mining companies, Big Ag fossil fuel developers, and other polluting industries can bulldoze and fill wetlands indiscriminately, harming our public health and ecosystems."
With state regulatory agencies and legislatures now empowered to determine how wetlands are protected, Earthjustice said waterways in states including Texas, Kentucky, Oklahoma, and Colorado are the most vulnerable to industrial pollution. States including Vermont, New York, and Minnesota currently have some of the strongest protections in place.
Marc Yaggi, CEO of Waterkeeper Alliance, said that with the climate and pollution crises becoming increasingly destructive, "there could not be a worse time to weaken the Clean Water Act."
"Intensifying droughts are wreaking havoc on agriculture, pollution and toxins are increasingly threatening water sources nationwide, and millions of people are contending with dangerously contaminated drinking water," said Yaggi. "Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action."
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EPA Proposal Could Embolden Industry to 'Destroy Wetlands and Pollute Our Waters'
"We have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," noted one lawyer.
Jul 19, 2023
An environmental law group on Wednesday sounded the alarm over a proposed Biden administration rule intended to "streamline and clarify the requirements and steps necessary for states and tribes to administer programs protecting waterways from discharges of dredged or fill material without a permit."
Earthjustice warned in a statement that the new U.S. Environmental Protection Agency (EPA) proposal—for which the administration will now accept and consider public comment—could "allow more pollution and reckless development" in U.S. waterways and wetlands.
The rule pertains to Clean Water Act (CWA) Section 404 permitting. While the U.S. Army Corps of Engineers administers it for most of the country, three states—Florida, Michigan, and New Jersey—have been granted the authority to run their own programs with federal oversight.
"EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection."
However, as E&E Newsreported in May, "at least two Republican-led states, Alaska and Nebraska, and one led by a Democrat, Minnesota, are on a quest to oversee a dredge-and-fill permitting program that influences construction projects with implications for federally protected waters."
E&E News noted that the EPA confirmed it was "having discussions with the trio of states about the possibility of shifting primacy over the permitting program" as the agency continued to work on the proposal that was unveiled Wednesday.
EPA Assistant Administrator for Water Radhika Fox said Wednesday that the pending rule "will support co-regulator efforts to administer their own programs to manage discharges of dredged or fill material into our nation's waters."
Meanwhile, Julian Gonzalez, senior legislative counsel for Earthjustice's Healthy Communities program, argued that "EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection without considering the pitfalls and reduced water protections that may follow."
"Most recently we have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," he said. "It is up to EPA to ensure that it will not happen again. Florida will not be the last state that tries to erode federal oversight of our waters and wetlands by taking over 404 permitting while avoiding accountability."
During former President Donald Trump's final months in office, Republican Florida Gov. Ron DeSantis—now one of Trump's competitors for the GOP's 2024 presidential nomination—successfully sought to assume control of 404 permitting for the state, which outraged green groups including Earthjustice.
As Bloombergreported in April:
The takeover was a big bet that states can both streamline development and better control water pollution than the federal government can. It has provided an early window into how DeSantis might view environmental regulation as president if he decides to run.
But two-and-a-half years into the state takeover, it isn't yet the deregulatory panacea state officials and the EPA had hoped for.
Gonzalez asserted Wednesday that "EPA must retain robust oversight of the 404 permitting process, set strong minimum standards that all states must meet before they can assume a 404 program, and ensure this rule does not result in lesser federal protections under the CWA and other protective laws triggered by federal permits, like the Endangered Species Act."
"EPA must ensure that the final version of this rule reflects the concerns of affected communities, which have been fighting attacks on the Clean Water Act, and who have not been consulted on this issue at all," he added. "A weak framework for 404 assumptions will further embolden the industry's deregulatory agenda to destroy wetlands and pollute our waters in the name of profit. We look forward to giving EPA additional feedback on this important rule."
The EPA proposal comes after the U.S. Supreme Court's right-wing majority in May issued a ruling in Sackett v. EPA that Earthjustice called "a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
The high court was criticized for taking the case as the EPA was working on a new "waters of the United States" (WOTUS) rule that was finalized in December—and which Republicans in Congress, with the help of a few Democrats, recently tried to kill, provoking a veto from Biden.
Despite the veto, congressional opponents of Biden's WOTUS rule have not given up. The GOP-controlled U.S. House Appropriations Committee Appropriations on Wednesday approved a sweeping bill for fiscal year 2024 that would repeal the policy.
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Right-Wing US Supreme Court Delivers 'Catastrophic Loss for Water Protections'
The court "ripped the heart out of the law we depend on to protect American waters and wetlands," said one critic, warning that the ruling "will cause incalculable harm."
May 25, 2023
The U.S. Supreme Court's right-wing majority on Thursday severely curtailed protections for "waters of the United States."
The decision in Sackett v. Environmental Protection Agency (EPA) is "unanimous in result but very split in reasoning," explainedSlate's Mark Joseph Stern. "The upshot of Sackett is that, by a 5–4 vote, the Supreme Court dramatically narrows" which wetlands are covered by the Clean Water Act (CWA).
The majority opinion—authored by Justice Samuel Alito and joined by all of the court's other right-wing members except Justice Brett Kavanaugh—concludes that the CWA only applies to wetlands with "a continuous surface connection" to larger bodies of water, excluding those that are "adjacent."
\u201cThe decision is so extreme that they even lost Brett Kavanaugh, who wrote separately to note that "long-regulated adjacent wetlands" are now at the mercy of polluters, "with significant repercussions for water quality and flood control throughout the United States."\u201d— Cristian Farias (@Cristian Farias) 1685024738
Earthjustice declared in response to the ruling that "this is a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
Manish Bapna, president and CEO of the Natural Resources Defense Council (NRDC), was similarly critical, saying that "the Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands."
"The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price," Bapna warned.
"What's important now is to repair the damage," he added. "The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation, and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters."
\u201cBREAKING: The U.S. Supreme Court just ruled in favor of corporate polluters over protecting communities & #cleanwater, ignoring decades of legal precedent, science, & Clean Water Act protections. SCOTUS failed us. @POTUS & Congress must step in to protect our nation\u2019s\u2026\u201d— Waterkeeper Alliance (@Waterkeeper Alliance) 1685026989
Elizabeth Southerland, former director of science and technology in EPA's Office of Water, noted that "since 1989, the U.S. government has used Clean Water Act authority to either prevent the filling of wetlands or to permit filling only when an equal acreage of wetlands is reclaimed or restored."
"Wetland preservation is critical for providing flood control, absorbing pollutants, preventing shoreline erosion, storing carbon, and serving as a nursery for wildlife," stressed Southerland, now a volunteer with the Environmental Protection Network.
Thursday's decision, she said, "is a big win for land developers and miners, who will now be free to destroy certain types of wetlands without paying for wetland reclamation," and "a big loss for communities who will have to pay more to treat their drinking water and respond to increased flooding and shoreline erosion."
\u201cNEW: The Supreme Court just gutted the Clean Water Act, leaving communities, health, and ecosystems vulnerable.\n\nBig polluters celebrate while water protections crumble.\n\nIf we're going to tackle the climate crisis, we must expand the court!\u201d— Sunrise Movement \ud83c\udf05 (@Sunrise Movement \ud83c\udf05) 1685031538
The high court was criticized for hearing the case—brought by an Idaho couple denied a permit by the EPA—as the federal agency was finalizing a new waters of the United States (WOTUS) rule following the Trump administration's widely condemned rollback. The Biden administration's policy was just finalized in December.
"While Earthjustice and our allies are closely evaluating the impact of the Sackett decision on the new WOTUS regulation," said Sam Sankar, the legal group's vice president of programs, "we can say with certainty that the court has once again given polluting industries and land developers a potent weapon that they will use to erode regulatory protections for wetlands and waterways around the country."
Highlighting that "wetlands play an integral role in protecting downstream waterways and reducing flooding—which will only worsen as climate change makes extreme weather more frequent," Food & Water Watch legal director Tarah Heinzen said the right-wing ruling "rejects this established science in favor of corporate developers' profiteering."
Now, Heinzen added, "the Biden administration and states must get creative and use every tool at their disposal to protect our rivers, streams, and wetlands from this devastating decision."
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