The Clean Water Act new rules about wetlands and waterways were published ahead of a SCOTUS case that may change them. Again.
The Clean Water Act has been a point of contention for businesses since its inception. The nature of exactly which waterways are governed by the rules of the legislation has been brought to the Supreme Court numerous times through the years.
Now, the Biden Administration hopes to settle the conflicts by outlining exactly which wetlands and other waterways fall under CWA jurisdiction and, therefore, require a permit for alteration. The main dispute has been over how connected a waterway, especially a wetland, has to be in order to consider it adjacent to a covered waterway. The new rules attempt to lay out guidance that a reasonable person could use to determine if their property is adjacent to a covered waterway, based on nearly 45 years of implementation of the definition.
A case waiting to be taken up by the Supreme Court of the United States this fall - Sackett v. EPA - could force those rules to change again. The case involves a wetland that is seemingly cut off from a covered waterway by a road. The location is set in a quarry and the outcome of the decision could have impacts for farmers, mines, quarries and developers alike. The EPA says the new rules are broad enough to cover the conditions represented by Sackett. Not surprisingly, Republicans on the Transportation and Infrastructure Committee disagreed, stating that “It’s particularly foolish to do this now and waste federal resources when the Supreme Court has yet to rule on the issue.”
As Mark Twain (allegedly) said, “Whiskey is for drinking; Water is for fighting.” Stay tuned.
Take a deeper dive on the Clean Water Act in your community:
- River Network: The Clean Water Act Owner’s Manual: This tool identifies the many ways that every person can track, influence, and change the way the Clean Water Act is implemented at the federal, state, and local levels.