The Supreme Court dramatically narrows the scope of the Clean Water Act

The decision of 5-4 in Sackett v EPA creates a much narrower criterion than has been used for over half a century to determine which bogs and marshes fall within the scope of the 1972 Act. Under the majority definition, only wetlands with a continuous connection from surface water to larger streams, lakes and rivers would benefit from federal protections.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, wrote in the majority opinion that only wetlands “indistinguishable” from these larger waters should be covered.

“Wetlands that are separated from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Alito wrote.

The court’s liberals, joined by Judge Brett Kavanaugh, disagreed with the test, arguing that it cuts off a wide swath of wetlands that are important to the Clean Water Act’s goal of protecting waters. from the country.

“Put simply, the Court’s atextual test – rewriting ‘adjacent’ to mean ‘contiguous’ – will produce real-world consequences for United States waters and generate regulatory uncertainty,” Kavanaugh wrote in his concurring opinion.

Biden lambasted the decision in a statement Thursday afternoon, warning that it “will set our country back” and vowing to “use every legal authority we have” to protect Americans’ water.

“Today’s decision upends the legal framework that has protected U.S. waters for decades,” Biden said. “It also challenges the science that confirms the essential role of wetlands in protecting our country’s streams, rivers and lakes from chemicals and pollutants that harm the health and well-being of children. , families and communities.”

EPA Administrator Michael Regan, whose agency earlier this year finalized a rule aimed at cementing a broad interpretation of the water law, said in a statement that he was disappointed with the ruling.

“As a public health agency, the EPA is committed to ensuring that all people, regardless of race, money in their pocket, or community in which they live, have access to a clean and safe water. We will never shy away from that responsibility,” Regan said.

Environmental groups were also quick to criticize the decision, arguing that it reduces the federal government’s ability to protect the health of the nation’s waters and will have far-reaching repercussions.

“The Supreme Court has ripped out the heart of the law we depend on to protect America’s waters and wetlands,” Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a statement. “This decision will cause incalculable harm. Communities across the country will pay the price.

The ruling is the latest twist in the long-running dispute over the scope of federal upstream water protections. Industry groups, environmentalists and the federal government have battled it out in court since the vaguely worded Clean Water Act was passed.

The last time the Supreme Court considered the issue, in the 2006 case Rapanos v. UNITED STATES, he issued a decision deemed confused in which the court’s four conservative justices crafted a narrow test, extending federal protections to only “relatively permanent” waters. Then-Judge Anthony Kennedy, however, developed his own separate test in his concurring opinion. The result was mass confusion on the ground as successive Democratic and Republican administrations sought to impose their policy preferences.

In recent years, as the Supreme Court has tilted further to the right, opponents of broad federal authority have sought to bring the issue before the justices again, hoping for a more decisive result in their favor. – which the court pronounced on Thursday.

THE bag case focuses on a parcel of wetlands on property owned by Chantell and Michael Sackett near Priest Lake, Idaho. The couple, who had planned to build their dream home on the property, argued with the EPA and the Army Corps of Engineers for a decade and a half over whether it should be subject to the licensing requirements of the Clean Water Act.

The judges unanimously agreed that the couple’s specific wetlands should not be subject to Clean Water Act regulation and that the court’s preliminary test, stemming from the 2006 case Rapanos v. UNITED STATES, should no longer determine the scope of the law. For this reason, Kavanaugh’s opinion and a separate opinion from court liberals are considered concurring opinions.

The two wings of the Court, however, remained sharply divided on what the new test for federal jurisdiction should be.

Conservatives, property rights activists and industry groups celebrated the decision on Thursday, saying it curtails a vast overbreadth that had effectively given the federal government control over land use.

“The EPA has clearly exceeded its authority under the Clean Water Act by preventing private landowners from developing their lands despite their distance from the nearest navigable waters,” said Zippy Duvall, president of the American Farm Bureau Federation, in a press release.

The Biden administration must now decide how to proceed. At a minimum, the settlement he finalized in January will need to be reworked in light of the new ruling. This rule is currently in effect in less than half of the states; the other half is covered by court freezes.

In anticipation of the High Court’s decision in bagthe EPA has already queued work on a second rule, which it said it plans to propose this fall.

“The Biden-Harris administration has worked to establish an enduring definition of ‘America’s waters’ that protects our nation’s waters, enhances economic opportunity, and protects people’s health while providing clarity and certainty that the farmers, ranchers and landowners deserve,” said Régan. “These goals will continue to guide the agency as we carefully review the Supreme Court’s decision and consider next steps.”

Alex Guillén contributed to this report.