An aerial shows one of the largest Delmarva bays, a unique feature to the peninsula that stands to lose federal protection because it lacks a surface connection to a “navigable” waterway.

Dave Harp
An aerial shows one of the largest Delmarva bays, a unique feature to the peninsula that stands to lose federal protection because it lacks a surface connection to a “navigable” waterway.
Dave Harp

ANNAPOLIS, Md. – Cornered by a U.S. Supreme Court ruling sharply restricting federal authority over wetlands and streams, the Biden administration has rolled back rules meant to protect them from development. Yet the long-running dispute over the issue seems likely to continue, as the new rule drew fire from all sides.

Five of the nine justices had declared in May that the federal government lacked legal authority to regulate disturbances of isolated wetlands and tiny streams that flow with water only after heavy rains.

The majority’s opinion, issued in a case for which the U.S. Environmental Protection Agency had demanded an Idaho couple get a permit to build in a wetland, seemed to settle a decades-old legal and political controversy about which “waters of the United States” are protected by the federal Clean Water Act passed in 1972.

The Trump administration had sought to roll back federal protection of wetlands and streams, only to have its rulemaking blocked by a federal judge. The Biden administration had come out in January with a proposal to restore protections for many isolated wetlands and ephemeral streams.

The high court’s majority, though, said federal law only applied to relatively permanent water bodies and to wetlands connected or adjacent to “navigable waters,” such as a river or ocean.

The decision effectively strips federal protection from as much as 65% of wetlands nationwide and more than 80% of the streams, environmentalists contend.

The effect in the Chesapeake Bay watershed is not as drastic because five of the six states and the District of Columbia provide at least some protection under their own laws. Delaware is the only watershed state that relies solely on federal law to regulate disturbance of its streams and wetlands. But environmental advocates say they fear that withdrawal of federal oversight will inevitably weaken enforcement of wetland protections even in states with their own laws.

In August, the EPA and the U.S. Army Corps of Engineers responded to the high court’s decision by yanking the more expansive definition of waters of the U.S. that they had proposed in January, which would have protected isolated wetlands and ephemeral streams with a “significant nexus” to navigable waters. The agencies replaced that with a much narrower rule that officials said hews to the justices’ opinion in Sackett v. EPA.

EPA Administrator Michael Regan issued a statement saying that although he was disappointed by the court’s decision, the agencies had to comply with it.

The American Farm Bureau complained that the agencies still didn’t go far enough in withdrawing federal oversight. “The updated rule leaves in place much of the overreach that Farm Bureau and many others have been opposing,” the group said, vowing to persist in its legal challenge to the rule.

Environmentalists, meanwhile, blamed the court rather than the EPA for forcing the agency to rely on a “radically narrower” definition of protected waters. Lisa Frank of Environment America called on the states to “act immediately” to protect wetlands from pollution and degradation.

“Ultimately,” Frank said, “Congress must amend the Clean Water Act to restore federal protection to all of America’s waterways, including wetlands.”

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1 Comment

  1. Basically our laws say “THE” government can’t make up rules to suit their own current agenda. Laws are intended to be enacted by our elected representatives, not by gratuitously appointed ‘officials’.

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