Supreme Court cuts EPA’s Clean Water Act protection for wetlands - ABC

A sharply divided Supreme Court on Thursday significantly rolled back federal safeguards for wetlands under the Clean Water Act, siding with Idaho property owners in a decision that curbs Environmental Protection Agency power.

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The Clean Water Act of 1972 allows the government to set rules for pollution in “waters of the United States,” but for years, the extent to which adjacent wetlands are covered by the law has been hotly debated and unclear.

In 2017, a fractured Supreme Court said that the EPA can regulate any wetlands with a “significant nexus” to navigable waters, like rivers, lakes and oceans.

But Thursday, Justice Samuel Alito, writing for a five-justice majority in the Sackett case, said the existing standard is too broad, too difficult to enforce and too “precarious” for property owners.

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He said the EPA could only regulate wetlands adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters” and having a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

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The decision will in effect significantly reduce the number of wetlands protected by the Clean Water Act. It will also provide property owners with greater clarity and flexibility in utilizing their land free from government regulation.

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Alito was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett in adopting the new, more stringent “continuous surface connection” standard for which wetlands are protected.

All of the justices agreed that the [plaintiffs’] property, specifically, should not have been regulated as a wetland under the Clean Water Act, but Trump-appointed Justice Brett Kavanaugh joined liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in strongly arguing that the majority had gone too far with its reasoning.

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote for the minority.

EPA administrator Michael Regan said the agency was disappointed by the high court’s decision and that it “erodes longstanding clean water protections.”

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The White House said the decision “aims to take our country backwards.”

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Environmental groups said the decision is a huge setback.

“The … decision undoes a half-century of progress generated by the Clean Water Act. Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” said Sam Sankar, vice president of Programs at Earthjustice, an advocacy group that had weighed in on the case.

Sierra Club Executive Director Ben Jealous said the weakened rules would have a direct impact.

“Millions of Americans will have less safe drinking water than the generation before them,” Jealous said in a statement. “This fight is far from over.”

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