The Supreme Court’s ruling on Thursday defining which wetlands can be protected under the Clean Water Act will require the Biden administration to rewrite bedrock regulations of what is protected as “waters of the U.S.”
The court unanimously ruled that the EPA and U.S. Army Corps of Engineers wrongfully claimed oversight of wetlands on the property of Idaho couple Chantell and Michael Sackett. However, the justices were divided 5-4 when determining a new test to replace ones put forward in 2006 by Justices Anthony Kennedy and Antonin Scalia in the 4-1-4 ruling on Rapanos v. United States.
[Supreme Court narrows water pollution protections]
While Kennedy’s test had allowed for bodies of water with a “significant nexus” to navigable waters to be protected, Justice Samuel A. Alito Jr. wrote for the majority that “CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,’ so that they are ‘indistinguishable’ from those waters.”
The Bush and Obama administrations had relied upon the significant nexus test — which holds that wetlands that could affect protected waters should be covered by the act. In December the corps and the EPA finalized a rule that relied on that test.
‘Deeply disappointed’
In the wake of the ruling, EPA Administrator Michael S. Regan said he was “deeply disappointed that the court is taking away the EPA’s ability that has been standing for 50 years,” while President Joe Biden said it “will take our country backwards.”
“It puts our Nation’s wetlands — and the rivers, streams, lakes, and ponds connected to them — at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on,” Biden said in a statement.
The EPA and the corps finalized the rule after the Supreme Court announced it would hear the Sacketts’ case. However, in hearings on the EPA’s fiscal 2024 budget proposal this spring, Regan defended the decision to move ahead with the rule-making and said that any ruling in the case would ultimately affect only a portion of the final rule.
House Transportation and Infrastructure Chairman Sam Graves, R-Mo., said after Thursday’s ruling the next step should be for the administration to withdraw the “ill-advised rule.” Earlier this year he and Senate Environment and Public Works ranking member Shelley Moore Capito, R-W.Va., attempted to vacate the rule through a Congressional Review Act joint resolution, which was ultimately vetoed by Biden.
While the joint resolution passed both chambers largely along party lines, some Democrats, including House Agriculture ranking member David Scott, D-Ga., and Senate Energy and Natural Resources Chairman Joe Manchin III, D-W.Va., joined Republicans in support of the measure.
Groups including the National Mining Association and the American Farm Bureau Federation similarly celebrated the ruling and called for a new rule to be finalized. Charles Yates, an attorney with the Pacific Legal Foundation, which represented the Sacketts, said it was a “significant win for property rights and the separation of powers” and that the Supreme Court has set forth a “clear test” for the agency to follow.
“It’s really significant for that Biden rule because the Biden rule is simply unworkable in light of this ruling,” said Yates. “It relies on the significant nexus test to regulate wetlands and other features under the Clean Water Act and the significant nexus test has now been decisively rejected.”
Regan said that the agency was still reviewing the court’s ruling and considering its impacts. However, any rule the EPA can finalize may ultimately bear some similarities to the rule finalized by the Trump administration in 2020. In that rule the Trump administration cited the test put forward by Scalia in the Rapanos case which said only bodies of water with “a continuous surface connection” to a navigable water qualify for protections.
The Trump administration rule would have eliminated protections for up to 51 percent of wetlands and was ultimately vacated after Arizona district court Judge Rosemary Márquez, an Obama appointee, found that it would result in “serious environmental harm.”
Impacting enforcement
Senate Environment and Public Works Chairman Thomas R. Carper, D-Del., said that the court’s ruling will ultimately impact the federal government’s ability to effectively enforce the CWA.
“I strongly disagree with the Court’s decision, and I am deeply concerned about the future impacts of this case on clean drinking water, coastal and flood-prone communities, and wildlife across our nation,” Carper said in a statement.
The justices who dissented on the test raised similar concerns. In a concurring opinion Justice Brett M. Kavanaugh, joined by the court’s three liberal justices, said that the majority was departing from the statutory text with its new test, which he said would “leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control.”
Justice Elena Kagan took the criticism further and said in a separate concurring opinion that the majority’s “non-textualism” would prevent “the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
The text of the CWA sets the objective of restoring and maintaining “the chemical, physical, and biological integrity of the Nation’s waters.” Ian Fein, senior counsel with the Natural Resources Defense Council, said that by opting for a test that will include a narrower number of wetlands the court’s majority ignored the intent of the law.
“Congress itself, in the text of the Act, was looking to science. And you can’t protect the chemical, physical and biological integrity of our nation’s waters without protecting the nearby wetlands that directly affect those [waters],” said Fein. “So [the court’s decision is] both anti-science and anti what Congress itself made clear was the objective of the Clean Water Act.”
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