Under the Clean Water Act, the Environmental Protection Agency and the Army Corps of Engineers may regulate pollution in “waters of the United States.” In 2023, the agencies finalized revisions to their definition of “waters of the United States” in response to the Supreme Court’s 2023 ruling in Sackett v. EPA, which narrowed the scope of the Clean Water Act’s jurisdiction. Last month, the agencies proposed further revisions which would narrow the definition even more.
Eliminating Clean Water Act protections for certain bodies of water would likely cause environmental and health harms. But, unlike past rulemakings, the agencies have provided little to no analysis about the impact of the Proposed Rule’s changes. The agencies also appeared to anticipate that states and tribes might take on the federal government’s role as regulator, limiting the harm of the Proposed Rule.
We submitted comments explaining:
- First, the agencies must conduct a more complete analysis of the impacts of the proposed rule, including a full assessment of the magnitudes of the anticipated costs and benefits.
- Second, if the agencies choose to incorporate state and tribal regulatory responses to the Rule in their assessment, they must do so a reasonable and evenhanded way. A complete analysis would include the full range of possible regulatory responses by state and tribal entities, including a scenario that assumes no change in state and tribal regulation.