Supreme Court restricts federal protection of wetlands
In a decision that will narrow federal protection of wetlands, the Supreme Court ruled on Thursday that the 1972 clean water law applies only to marshy areas with “a continuous surface connection” to streams, oceans, rivers, or lakes. “Today’s ruling is a profound win for property rights and the constitutional separation of powers,” said the Pacific Legal Foundation, which argued the case for a couple blocked from building a home in northern Idaho.
Environmental and wildlife groups said the ruling would make millions of acres of wetlands subject to pollution and jeopardize drinking water supplies for millions of people. The ruling could bring some clarity to years of debate over the upstream reach of water pollution laws. The Obama, Trump, and Biden administrations have issued varying definitions of the “waters of the United States” (WOTUS) — and wetlands — under federal jurisdiction.
“The justices respect private property rights,” said Zippy Duvall, president of the American Farm Bureau Federation. “It’s now time for the Biden administration to do the same and rewrite the waters of the United States rule.” The AFBF joined mining and construction groups in suing the EPA early this year to overturn the latest version of WOTUS.
President Biden said the decision “will take our country backwards” and jeopardize 50 years of progress on water pollution. “My team will work,” he said, “to carefully review this decision and use every legal authority we have to protect our nation’s waters for the people and communities that depend on them.”
All of the justices agreed to shelve the “significant nexus” test that the Court created in 2006 to determine whether a wetland was protected by the clean water law. But four of them said the court was imposing its own standard for wetlands rather than heeding the expansive language of the 1972 law.
Justice Elena Kagan decried “the court’s appointment of itself as the national decision-maker on environmental policy.” Justice Brett Kavanaugh, joined by Justices Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, said the court’s decision to limit the clean water law to “adjoining” rather than “adjacent” wetlands “will produce real-world consequences and will generate regulatory uncertainty. There can be no debate … that the key statutory term is ‘adjacent’ and that adjacent wetlands is a broader category than adjoining wetlands.”
In the majority opinion, written by Justice Samuel Alito, the court rejected EPA arguments that “adjacent” extended federal jurisdiction to nearby or neighboring lands. It said that waters of the United States were streams, oceans, rivers, and lakes — “i.e., a relatively permanent body of water connected to traditional interstate navigable waters.” For the clean water law to apply, it said, a wetland must have “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
The 2006 Supreme Court decision said the clean water law included wetlands with an ecologically significant nexus to traditional waters. A federal district court and an appellate court used that standard in ruling that the clean water law applied to a half-acre lot that Michael and Chantell Sackett purchased near Priest Lake, in the Idaho Panhandle. The Sacketts were told they would need federal permits to build on a wetland. The Supreme Court ruled unanimously in 2012 that the Sacketts had the right as landowners to challenge the EPA determinations. The Pacific Legal Foundation represented the Sacketts in that case, too.
PLF attorney Damien Schiff said Thursday’s ruling “returns the scope of the Clean Water Act to its original and proper limits.” The nonprofit legal organization, an avowed foe of government overreach, argued before the Supreme Court for adoption of the “continuous surface connection” standard.
The new standard will make it easier for real estate developers and home builders “to develop and build within non-adjoining wetlands near rivers, streams, lakes, and oceans, assuming the applicable state laws do not restrict development of the wetland,” said Noah Perch-Ahern, who practices environmental law in California. “Wetlands separated by barriers from waters should be easier to develop in states that don’t have more restrictive rules than the EPA.”
The Sierra Club called the court ruling “profoundly wrong and directly at odds with the statute Congress enacted 50 years ago — a statute the public supported then and continues to support today.”
Federal court injunctions have blocked implementation of the Biden WOTUS rule in 26 states. In early April, Biden vetoed a congressional resolution of disapproval, spearheaded by Republicans, to overturn the rule. House Agriculture Committee chair Glenn Thompson said the administration, after losing in the Supreme Court, should “withdraw its flawed final WOTUS rule.”
To read the Supreme Court ruling, click here.