SCOTUS ruling changes EPA authority over certain wetlands

A new U.S. Supreme Court Ruling has narrowed the definition of which waters are subject to federal protections under the Clean Water Act, limiting how the Environmental Protection Agency can implement safeguards in certain wetlands.  

In the decision, the court ruled 5-4 that wetlands must have “continuous surface connection” within a protected body of water that makes the two areas “indistinguishable” in order for the EPA to regulate discharges in these bodies of water. While all nine justices agreed that the case should be overturned, opinions differed on the direction the ruling should take. 

Justice Samuel Alito authored the majority opinion, which was agreed to by fellow Justices John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett.  

“The reach of the Clean Water Act is notoriously unclear,” Alito wrote. “Any piece of land that is wet at least part of the year is in danger of being classified by E.P.A. employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.” 

Justice Brett Kavanaugh and Justice Elana Kagan both authored their own dissenting opinions, with Justices Sonia Sotomayor and Ketanji Brown Jackson signing on to Kagan’s argument.  

The initial case out of Idaho, Sackett v. Environmental Protection Agency, involved a couple seeking to build a house on a soggy portion of land who sued the EPA after the agency ordered them to remove sand gravel and fill from the property. The lower court made a ruling that the EPA could regulate the property based on the 2006 U.S. Supreme Court decision Rapanos vs. United States.  

Both Kavanaugh and Kagan in their dissents argued that protected waters should include those who are separated by other protected bodies of water by man-made barriers or similar infrastructure rather than the current language that there must be a “significant nexus” between the two bodies of water.  

“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “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.”