A unanimous US Supreme Court ruling delivered on Thursday narrows the federal government’s authority in regulating bodies of water and could have larger implications for protection of wetlands across the country, according to analysis from an environmental publication.

In a 9-0 decision on the merits, the high court rejected the US federal Environmental Protection Agency’s (EPA) broad definition of Waters of the United States (WOTUS) that the agency used when it prohibited an Idaho couple (Sackett) from building a home near a wetland years ago, E&E news reported.

“Wetlands are only protected by the Clean Water Act if they have a continuous surface connection with a larger body of water that makes it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” Justice Samuel Alito (R) wrote in the accompanying opinion.

As per the Clean Waters Act (CWA) of 1972, the EPA had classified wetlands on the couple’s property to be WOTUS because they were adjacent to a lake 300 feet away, making the property subject to federal jurisdiction, which the couple disputed.

The Supreme Court held that the government’s WOTUS definition must be restricted to a water source with “continuous surface connection” to major bodies of water.

However, the court was split 5-4 in determining how the federal government would go about defining water sources.

“On three prior occasions, this Court has tried to clarify the meaning of ‘the waters of the United States’. But the problem persists,” Justice Alito wrote, being of the view that the couple’s property was not covered by the CWA as it was cut off from the lake by a roadway.

In the concurring opinion, Justice Elena Kagan (D) noted that the majority decision had strayed too far from the text of the CWA, which says the law covered “adjacent” wetlands that don’t necessarily touch navigable waters.

“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,” Justice Brett Kavanaugh (R) wrote in the concurring opinion.

RULING RAMIFICATIONS

The high court’s ruling places the EPA’s new WOTUS definitions finalised at the end of last year in jeopardy, especially the parameters around which the nation’s wetlands and waterways would merit federal protection, the media outfit noted.

The Biden administration’s WOTUS rule had returned the definition of federally protected waters and wetlands back to the Reagan era, pairing back the sweeping and ambitious definition by the Obama administration in 2015, but expanding the Trump-era WOTUS regulation that was struck down by a federal judge in 2021.

Nonetheless, the EPA’s new WOTUS regulation had launched lawsuits across the US, with a federal judge granting a request from 24 states and several trade groups to pause implementation of the regulation until the Supreme Court had reached the decision on the Sackett v. EPA case.

Larry Liebesman, a senior advisor at law firm Dawson & Associates, wondered if the Sackett ruling would roll back wetland protections even further than those outlined in the Trump-era rule.

Environmental advocacy Earthjustice called the outcome “a catastrophic loss for water protections across the country and a win for big polluters” that would imperil the nation’s wetlands, with almost 1 million acres of formerly protected wetlands now “deeply threatened”, according to E&E.

However, Courtney Briggs, chair of the Waters Advocacy Coalition, applauded the decision.

“The ruling preserves protections for our nation’s valuable water resources while delivering much-needed clarity to the process of determining federal jurisdiction over wetlands,” Briggs said.

The US Senate and House had also approved regulation rejecting the EPA’s WOTUS rulemaking, with members of the Congressional Western Caucus calling on the agency to officially rescind its WOTUS regulation in light of Thursday’s Supreme Court’s decision.

Earlier in March, a UN water conference in New York had generated billions of dollars from over 700 pledged commitments on water from 160 governments and 75 multilateral organisations in attendance, to manage fresh water resources and combat biodiversity loss across rivers, lakes, and wetlands.

By Joan Pinto – joan@carbon-pulse.com

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