The US Supreme Court put new limits on the Clean Water Act, ruling in favor of an Idaho couple seeking to build a house on property that federal regulators say is protected wetlands.
(Bloomberg) — The US Supreme Court put new limits on the Clean Water Act, ruling in favor of an Idaho couple seeking to build a house on property that federal regulators say is protected wetlands.
The justices, ruling unanimously but dividing sharply in their reasoning, said land owned by Chantell and Michael Sackett lacked enough of a connection to nearby Priest Lake to require them to get a permit under the Clean Water Act.
The ruling could give companies a freer hand to discharge pollutants and could let developers construct more new houses without getting federal approval. The decision, which comes less than a year after the court curbed the Environmental Protection Agency’s power to address climate change, is a victory for property-rights advocates and a defeat for environmentalists and the Biden administration.
The 1972 Clean Water Act gives the federal government control over “waters of the United States,” including rivers and lakes. Writing for five members of the court, Justice Samuel Alito said wetlands are covered only if they have a continuous surface connection to one of those major waterways.
“We hold that the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States,” Alito wrote. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined Alito’s opinion.
In a concurring opinion that read more like a dissent, Justice Elena Kagan said Alito’s test ignored the water law’s language and put “a thumb on the scale against the Clean Water Act’s protections.” She likened the ruling to the court’s climate change decision last June.
“The vice in both instances is the same: the court’s appointment of itself as the national decision-maker on environmental policy,” Kagan wrote in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Justice Brett Kavanaugh also declined to join Alito’s reasoning, saying he would have sided with the Sacketts on narrower grounds. Writing for himself and the three liberals, Kavavaugh said the law covers wetlands that are separated from a major waterway only by a barrier like a dike or beach dune.
Kavanaugh and Kagan both pointed to a 1977 provision that suggests the law covers “adjacent” wetlands.
The fight involves a 0.63-acre property near Priest Lake in northern Idaho. The property is about 300 feet (91 meters) from the lake and, on the other side, across a road from a tributary of a creek that feeds into the lake. The EPA says that the land is connected to the lake through a subsurface flow of water.
The Biden administration contended the tributary across the road brought the land within the scope of the Clean Water Act, particularly since the two properties were once part of the same wetlands complex. The administration said wetlands play a crucial role in protecting the integrity of nearby water bodies, even if they don’t have a surface connection.
The dispute began in 2007 when the EPA issued an administrative compliance order requiring the Sacketts to restore land they had already begun preparing for construction. The case has bounced up and down the court system since then, with the Supreme Court saying in 2015 the Sacketts could press a lawsuit.
A federal appeals court later said the Clean Water Act covered the property, prompting the Sacketts to turn again to the Supreme Court.
The Sacketts’ appeal asked the court to revisit a 2006 Clean Water Act case, Rapanos v. United States, which failed to produce a majority decision and left uncertainty about the governing standard. Four justices, led by Antonin Scalia, said the law covers wetlands only if they have a continuous surface connection to a major waterway.
A fifth, Justice Anthony Kennedy, created his own test, saying the Clean Water Act covers wetlands with a “significant nexus” to one of those larger bodies of water.
Alito on Thursday rejected the significant-nexus test, saying that “the boundary between a ‘significant’ and an insignificant nexus is far from clear.”
The case is Sackett v. Environmental Protection Agency, 21-454.
–With assistance from Emily Birnbaum.
(Updates with excerpts from opinions starting in fourth paragraph.)
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