The Supreme Court on Thursday limited federal protections for millions of acres of wetlands, ruling in favor of property rights over clean water.
In a 5-4 decision, the justices said the Clean Water Act does not prohibit discharges of pollutants into wetlands or dry streambeds because the water does not flow directly from them into a river, lake or bay. The decision would allow those areas to be developed without federal review.
A court has ruled for a couple who were barred from building a home on a wet vacant lot next to Idaho’s scenic Priest Lake.
“We hold that the CWA applies only to “wetlands that have a continuous surface connection with bodies that are waters of the United States in their own right,” so that they are “indistinguishable” from those waters.” said Judge Samuel A. Alito. for the younger conservative majority.
That definition leaves out many wetlands, and its impact may be greatest in the West and other places where streams dry up part of the year.
Judges Brett M. Cavanaugh, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented and said Congress intends to protect more wetlands from development, including wetlands that are located near but not directly connected to rivers or streams.
The decision in Sackett vs. The EPA is a victory for landowners and developers and a defeat for environmentalists.
Sam Sankar, vice president of programs at Earthjustice, condemned the decision. It “undoes half a century of progress brought about by the Clean Water Act. Nearly 90 million acres of previously protected wetlands now face an existential threat from polluters and developers,” he said. “This decision is the culmination of a decades-long effort by the industry to get conservative courts to do what Congress refused to do.”
West Virginia Atty. Gen. Patrick Morrissey welcomed the decision. “We now have a clearer definition of Waters of the United States, and we’re glad the Supreme Court ruled in a way that makes state lands and waters less subject to the whims of unelected bureaucrats,” he said. “Today is a big day for farmers, home builders, contractors, property owners and anyone who cares about economic activity not being dominated by the federal government.”
All nine justices agreed that the Idaho couple’s vacant lot was not a protected wetland, but they disagreed on how to define that term.
Alito, joined by four conservatives, adopted the view championed by the late Justice Antonin Scalia that federal law protects only connected bodies of water, not adjacent wetlands.
But Cavanaugh and the court’s three liberals said Congress and the court have held for decades that wetlands adjacent to rivers or bays are protected.
Thursday’s ruling effectively overturns Judge Anthony M. Kennedy’s moderate position in 2006. He said the law should protect wetlands or dry stream beds that can sometimes drain into a river or bay. He rejected Scalia’s view that the EPA could only protect continuously flowing bodies of water.
But judges Neil M. With the addition of Gorsuch and Amy Coney Barrett, the court adopted Scalia’s view and threw out Kennedy’s view.
Thursday’s ruling limiting the EPA doesn’t stop states like California from protecting wetlands. But developers, home builders and farmers argue they should not be prevented from using land that includes wetlands.
The Clean Water Act was enacted in 1972 to prevent the discharge of pollution into “navigable waters” of the United States, but since then there has been controversy over the extent of federal jurisdiction.
Because the water flows downstream, environmental regulators said they need broad jurisdiction to prevent small streams or wetlands from draining into waterways. The banned pollutants included gravel and sand, which cannot be dumped into wetlands without a permit from the Army Corps of Engineers or the EPA.
But property rights advocates argued that the EPA had overstepped its authority. They said overzealous federal agents were preventing property owners from using their land.
The ruling is the second Superior Court victory for Idaho couple Michael and Chantel Sackett.
In 2004 they bought a lot that was about 300 feet from the lake. There were wetlands near the back of the property that drained into the lake, and part of their area was marshy. The couple had excavated in the past, and as the first step in building the house, they poured gravel and sand into the wet area of the lot.
Their real estate agent had warned them the lot contained wetlands, and in 2007 an EPA official told them they needed a permit before building a house on the lot.
The Pacific Legal Foundation took up their case and won a unanimous Supreme Court ruling in 2012 that allowed them to challenge the wetlands designation in court before going through the costly permitting process.
In their second challenge, a federal judge in Idaho and the 9th Circuit Court of Appeals in San Francisco ruled against the couple and ruled that their wetland was a protected wetland.
Appealing to the Supreme Court, attorney Damien Schiff said the Sacketts’ “property does not contain a stream, river, lake or similar body of water” and their “ordeal is emblematic of everything that has gone wrong with the Clean Water Act.”
In defense of the EPA, Justice Department lawyers said that “wetlands such as marshes, swamps, marshes, and valleys … play a critical role in regulating water quality. They provide flood control and trap and filter sediment and other pollutants that would otherwise be carried to downstream waters.”