Supreme Court narrows wetlands protections; Biden’s EPA ‘disappointed’ with decision

In a blow to the U.S. Environmental Protection Agency’s (EPA) authority over some water bodies, the Supreme Court last week ruled to narrow the scope of the “waters of the United States” (WOTUS) definition and how EPA can regulate wetlands under the Clean Water Act.

Biden administration officials including the president himself and EPA Administrator Michael S. Regan said they were disappointed by the decision that erodes clean water protections.

The Supreme Court ruled Thursday in Sackett v. EPA, a case dating back to 2004 when EPA attempted to regulate a wetland on the property of Michael and Chantell Sackett, a couple building a home on their property in Idaho. EPA threatened the Sackett’s with penalties after they began backfilling their lot, which EPA said included a federally-protected wetland under the Clean Water Act. Water from the wetland in question fed into a creek, which in turn fed into a nearby lake.

The Sacketts sued EPA but a U.S. District Court and, later on appeal, the Ninth Circuit Court of Appeals, sided with the agency. Then last October, the Supreme Court heard the Sackett’s appeal and on Thursday ruled that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger bodies of water such as streams, oceans, rivers and lakes.

A unanimous 9-0 ruling, all justices agreed the wetlands on the Sackett’s property cannot be federally regulated under the Clean Water Act.

President Joe Biden tweeted: “The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards — placing our Nation’s wetland’s, and the river, lakes, and ponds connected to them, at risk of pollution and destruction…”

“I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” added EPA Administrator Regan in a statement. “The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.”

Is this Wetland a WOTUS?

However, there were also some mixed reactions and support for the decision which some say will bring some much needed clarity to the waters of the U.S. rule, whose definition has long been disputed and litigated.

“There is still a lot to be seen on how this ruling will impact groundwater across the country, ” said National Ground Water Association CEO Terry S. Morse. “But it’s our hope that it will finally bring some clarity and long-term stability to what is enforced under the Clean Water Act. We all do better when there are consistent and fair rules in place, and we hope this is a step in that direction.”

Doug Carlson, CEO of the National Utility Contractors Association, said: “For too long, construction projects have faced unpredictable deadlines because of uncertainty over broad definitions of wetlands subject to federal regulation. This unnecessary confusion has delayed rebuilding the nation’s crumbling infrastructure, increased taxpayer costs, and negatively affected too many Americans and other essential utility infrastructure. [This] Supreme Court decision removes many of the arbitrary and overly broad protection classifications our members faced in their infrastructure construction project plans.”

On Dec. 30, 2022, EPA and the U.S. Department of the Army announced a final rule establishing a durable definition of WOTUS in order to reduce what EPA called uncertainty from changing regulatory definitions, and protect public health and support economic opportunity. The final rule restored the protections in place during the Obama administration and EPA said the action would strengthen protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.

But at least two dozen states proceeded to sue EPA, arguing the rule issued protections too broadly and that it could harm jobs and economic growth. Several attorneys general of Republican-controlled states said the rule would take jurisdiction from states and assert federal authority over nearly any body of water, as well as subject construction projects to an expensive and burdensome federal permitting process.

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