Half of US wetlands lost federal protection. Their fate is up to the states

US law does not function like this. Federal agencies are authorized to operate under authorizing law passed through Congress. A president can only direct an agency to allocate resources to do something under existing law (Executive Orders are not new law, they are instructing an agency to enforce or not enforce existing law). Agencies are given some latitude in how to create Rules that function under the authorizing Law, but they aren't Law.

If the Supreme Court says they don't have authorization under an existing law, Congress needs to pass new law that authorizes them to regulate it. President cannot direct them to write a rule to cover a condition it is not authorized to cover.

This issue also gets a bit more complicated since states could also file suit and escalate to the supreme court again that federal government should not have powers to regulate certain bodies of water inside the states. I don't know how this ruling will affect any new legislation that may get passed.

> c) Are making a cry for help for everyone to come together to fix congress. Hoping that if things get bad enough, people will finally wake up and get congress working again.

If we try to rely on the Supreme Court to fix things without fixing congress, the Supreme Court is going to become way more dysfunctional too.

Similar to Roe v Wade, this is an unfortunate decision, but one that I agree with.

Hopefully Congress will do something. Doubtful that they will.

> 45 years of precedent says they're included

Not quite.

As recently as in 2006, Rapanos decided "the CWA’s use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’"

Also: "More recently, the agencies have engaged in a flurry of rulemaking defining 'the waters of the United States.' In a 2015 rule, they offered a muscular approach that would subject 'the vast majority of the nation’s water feature' to a case-by-case jurisdictional analysis. Although the rule listed a few examples of 'waters' that were excluded from regulation like '[p]uddles' and 'swimming pools,' it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus.

The agencies repealed this sweeping rule in 2019. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and 'adjacent' wetlands. They also narrowed the definition of '[a]djacent,' limiting it to wetlands that '[a]but' covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. This rule too did not last. After granting the EPA’s voluntary motion to remand, a District Court vacated the rule."

https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf

In my job, I’ve gotten some pretty detailed experience with this part of the Clean Water Act.

Not mentioned in this article is the fact that the “substantial nexus” standard just rejected by the Supreme Court was ridiculously vague, and the process by which landowners could determine whether there existed a “substantial nexus” between wet-ish areas on their property and navigable waterways was ridiculously slow and uncertain. (But with potentially huge civil and even criminal penalties to those who guessed wrong.)

The process, in recent years: first you hire an specialized wetlands consulting firm whom you pay many thousands of dollars to compile a document that argues, in highly technical language, that no substantial nexus exists. You submit this “Request for Jurisdictional Determination”, which may run more than 100 pages long, to the Army Corps of Engineers. They respond whenever they get around to it. Maybe six months later you get an answer. More often than not, they claim jurisdiction, and then you have to file for an Army Corps dredge/fill permit that might take another six months to be issued.

Note that complaining about this painful process doesn’t imply a belief that waterways shouldn’t be protected. There are other land use restrictions (think: local zoning restrictions or FEMA flood plain building code restrictions) that are often very stringent, but at least their application is CLEAR. In most cases, a property owner or prospective buyer can determine the property’s zoning and flood plain status in five minutes by examining the relevant maps online.

No such clarity has existed regarding the location of Waters of the United States under the CWA. Hopefully this ruling will lead to a more clear-cut situation.