New EPA Rule Clarifies Federal Government's Authority To Regulate Waters And Wetlands

A new rule clarifying the extent of the federal government’s authority to regulate waters and wetlands was issued by the EPA this week, following a Supreme Court decision that struck down the Biden administration’s previous rule.

Through the 1972 Clean Water Act, the EPA has the authority to regulate the discharge of pollutants into "the waters of the United States" (WOTUS). Those "waters" clearly include navigable bodies -- oceans, rivers, and large lakes -- but a true definition of WOTUS has been the subject of partisan debate in recent years.

The debate has centered primarily on the question of whether wetlands and streams that have no clear connection to a navigable body of water should be subject to EPA regulation. The Biden EPA felt they should and issued a new rule cementing that view last December, a move that generated significant backlash, including from the Oklahoma delegation.

"The Biden administration‘s WOTUS rule is a perfect example of the administration usurping the authority, the supremacy, of the United States Constitution," said Rep. Josh Brecheen (R-OK2) on March 9, 2023, during a debate on legislation to overturn the rule. "This rule impacts private property, small business, farmers, ranchers..."

A challenge to the rule ended up before the Supreme Court in the form of Sackett v. EPA, and in May, the conservative Court ruled 5-4 that wetlands can only be regulated if they have a “continuous surface connection” with that larger body, a decision reflected in the revised rule issued this week.

Environmentalists decried the ruling, one in Florida telling CBS News that bodies of water don’t have to connect on the surface to be connected.

"There's a large body of research right now that does show the connection via groundwater, animals, energy, nutrient transfers," said Abbey Myrna, Executive Director of Suncoast Waterkeeper.

An official with the National Wildlife Federation, Jim Murphy, called the new rule "inadequate" and, in a statement, said, "Congress needs to step up to protect the water we drink, our wildlife, and our way of life. In the meantime, it will be up to the states to fill the gaping hole in water protections created by the Supreme Court.”

No member of the Oklahoma delegation has yet weighed in on the new rule, but other conservatives have, some saying it still goes too far and could also wind up before the high court.