Supreme Court Deals Major Blow to Biden Water Priorities; Clean Water Act Interpretation Significantly Narrowed
On May 25, the U.S. Supreme Court issued a ruling against the Environmental Protection Agency (EPA) that has significant implications for wetland protections and throws the Biden administration's current water policy rule into limbo.
Sackett v. EPA revolved around a piece of property owned by an Idaho couple who argued that their land does not contain a federally protected body of water. The EPA argued the property’s adjacency to a lake 300 yards away subjected it to federal jurisdiction. Damien Schiff, attorney for the Sacketts, stated today that the Supreme Court’s ruling “returns the scope of the Clean Water Act to its original and proper limits.”
The opinion, written by Justice Samuel Alito, drastically narrows the interpretation of wetlands' protection under the Clean Water Act. In summary, the majority opinion states that wetlands are only protected if they have a continuous surface connection with a larger body of water, making it difficult to distinguish where the "water" ends and the "wetland" begins. This ruling undermines the protections for the majority of the nation's wetlands, exceeding even the Trump administration's proposed limitations (the 2020 Navigable Water Protection Rule).
The Supreme Court's ruling creates uncertainty for the Biden administration's current water policy, specifically the new Waters of the United States (WOTUS) definition finalized by the EPA and Army Corps of Engineers in December 2022. The Biden WOTUS rule, designed as a compromise, aimed to balance the Obama Administration's ambitious definition with limitations imposed by previous court decisions. However, the ruling in Sackett challenges the Biden WOTUS rule and necessitates its revision to align with the court's decision.
The Supreme Court's decision also weakens the significant nexus test introduced in the 2006 case Rapanos v. United States. The court heavily favored Justice Scalia's narrower definition, which requires a surface water connection, thereby limiting the scope of protected wetlands. This shift has raised concerns about the potential rollback of wetland protections beyond the Trump-era rule.
Notably, the Court was unanimous in its finding that the Sackett property was not under federal jurisdiction. But the justices split on their reasoning for the conclusion. Justice Elena Kagan led the Court’s three liberals in a concurring opinion arguing that Justice Alito’s majority decision veered too far from the Clean Water Act’s text. Kagan and the liberal justices also joined a separate concurring opinion penned by Justice Brett Kavanaugh that argued Alito’s opinion is too restrictive in limiting the law’s reach to ‘adjoining’ wetlands.
EPA Administrator Michael Regan issued a statement after the ruling: “I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections… As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility…”
Environmental groups, including EarthJustice, called the ruling “a catastrophic loss for water protections across the country,” whereas the Waters Advocacy Coalition, a small business and farmers interest group, noted the action “preserves protections for our nation’s valuable water resources while delivering much-needed clarity to the process of determining federal jurisdiction over wetlands.”
The EPA and Army Corps of Engineers will now likely return to the drafting table to review the December 2022 rulemaking. It is unlikely that even the 1986 regulation can be enforced until a new rule is promulgated.
This policy alert provides a concise summary of the Supreme Court’s recent ruling in Sackett v. EPA and highlights its key implications. For a comprehensive understanding and further analysis, please consult with Constitution Partners leadership.
