The Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) issued a Final Rule on September 8 conforming their Clean Water Act (CWA) regulations to the Supreme Court’s recent decision in Sackett v. EPA, which redefined ‘Waters of the United States’ (WOTUS) to exclude many wetlands.
Only WOTUS receive CWA protections. Sackett v. EPA is the latest in a series of court cases attempting to settle the definition of WOTUS. Before Sackett, the USACE and EPA used two legal definitions in their regulations: wetlands or tributaries with a “continuous surface connection,” or a “significant nexus” to a navigable water qualified as WOTUS. Continuous surface connection means the water bodies are physically connected, and “significant nexus” means the wetland affects the water quality of the navigable water, which is determined using various water-related and ecological factors.
In Sackett v. EPA, the Court decided wetlands and tributaries can be WOTUS only if they have a continuous surface connection to a navigable water body, so EPA and USACE removed the significant nexus test from their regulations. Now, the CWA only protects tributaries and wetlands distinctly connected to navigable waters, meaning even an artificial structure could exclude water bodies from CWA protections.
This decision and regulation change allows ecologically important wetlands to be developed, causing habitat loss, increased vulnerability to flooding, and accumulation of pollutants in navigable waters, especially in states that border New Jersey but do not have as robust state-level wetlands protections. It is imperative that federal, state, and local policymakers create new, more expansive protections for wetlands and intermittent streams to account for downstream pollution.
Want to take action? Contact your representatives and let them know you support strong wetland protections and do not agree with the roll-back to these ecologically vital waterbodies.
- To contact your elected officials, go to: https://www.USA.gov/Elected-Officials
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| A vernal pool in Blair Creek Preserve Photo Credit: Mary Jasch |
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