EPA Revises Waters Rule to Align With High Court Sackett Decision
comments to the EPA regardless. The coalition urged the EPA to avoid finalizing a rule that attempts to satisfy the requirements of Sackett while also retaining aspects of the old rule that would more broadly protect waters and wetlands. The National Mining Association (NMA) released a statement from President & CEO Rich Nolan concerning the revised rule. “Earlier this year, the U.S. Supreme Court provided an important check to the federal government’s jurisdiction over water and land features. Now, just three months later, the administration returns with a revised WOTUS rule that perpetuates prior government overreach, infringing on state authority, and disregarding the court’s call for clarity, creating more regulatory confusion and uncertainty when just the opposite is needed. Given the soaring demand for mined materials and the need for domestic production to both help meet that demand and secure the nation’s supply chains, this rule was an opportunity to advance a regulatory framework that would support the development of strong domestic supply chains; instead, it has created a new obstacle. “The mining industry is committed to protecting our nation’s treasured water resources and we support responsible regulatory efforts to achieve that end, but this rule simply misses the mark by irresponsibly ignoring the intent of the Supreme Court.” “The mining industry is committed to protecting our nation’s treasured water resources and we support responsible regulatory efforts to achieve that end, but this rule simply misses the mark by irresponsibly ignoring the intent of the Supreme Court.” — Rich Nolan, President & CEO, National Mining Association “Given the soaring demand for mined materials and the need for domestic production to both help meet that demand and secure the nation’s supply chains, this rule was an opportunity to advance a regulatory framework that would support the development of strong domestic supply chains; instead, it has created a new obstacle.
By Bloomberg News A new rule governing federally protected waters and wetlands was issued in August by the EPA to align agency regulations with a US Supreme Court ruling that will allow unpermitted development in wetlands across the country. The rule revises the Biden administration’s earlier waters of the US, or WOTUS, definition finalized in January, removing its legal basis, which was struck down by the Supreme Court in May in Sackett v. EPA. The January WOTUS rule expanded federal Clean Water Act protections over wetlands and waterways. But the Supreme Court in Sackett limited the waters that can be protected under the act, potentially allowing construction and pollution in vast swaths of wetlands across the country. The new post-Sackett rule revises the January definition to remove the “significant nexus” standard that was the basis of the earlier rule. It also says wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways as required by the Sackett ruling. The significant nexus test allowed streams and wetlands adjacent to larger water bodies to be protected under the Clean Water Act. The new rule implements the court’s opinion that the Clean Water Act protects only waters and wetlands that are relatively permanent and have a continuous surface connection to navigable waterways, such as the Potomac or Mississippi rivers. Sackett v. EPA effectively eliminated the federal government’s role in regulating many wetlands nationwide, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated only by states. The EPA finalized the post-Sackett rule without issuing a draft for public comment. The agency did so using the rarely-used “good cause” exception to notice-and- comment under the Administrative Procedure Act, which allows federal agencies to forgo public comment when officials think that a rule update is sufficiently urgent. In this case, the Sackett ruling undermined the existing WOTUS regulation, leaving no legal regulation in place to govern wetlands and waterways. Radhika Fox, chief of the EPA’s Office of Water, said in July that the agency will answer questions from the public only after the final rule takes effect. Industry groups making up the Waters Advocacy Coalition, including the National Mining Association, American Petroleum Institute, American Farm Bureau Federation, and dozens of others, in July offered their
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September 2023 I The Alaska Miner I www.alaskaminers.org
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