Water Is Wet

Supreme Court Slashes EPA’s Ability to Regulate Water Pollution

In a 5-4 decision, the conservative court limited what kind of wetlands are covered by the Clean Water Act

May 25, 2023

Supreme Court EPA Regulate Clean Water — The Supreme Court of the United States in Washington, D.C. Adobe Stock

In a 5-4 ruling, the Supreme Court restricted the Environmental Protection Agency’s ability to regulate water pollution in the nation’s wetlands. The court determined that the 1972 Clean Water Act only applies to “wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights.”

“Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Justice Samuel Alito wrote in the court’s majority opinion.

The justices, ruling on Sackett v. Environmental Protection Agency, unanimously agreed that the Sacketts, a couple who wanted to fill in soggy land on their property near Priest Lake, Idaho, did not need to secure a federal permit to carry out the construction — but they were split on the expansive regulatory rollback endorsed by the majority.

Justice Brett Kavanaugh sided with the court’s liberal justices, writing in a concurring opinion that by “narrowing the [Clean Water] 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.”

Today in depressing legal news: even Kavanaugh understood how ludicrous and harmful it was to claim wetlands aren't covered by the Clean Water Act. But just one GOP Justice coming to their senses isn't enough, so today our environmental regulatory system is even more broken. pic.twitter.com/vrdCPMmZBi
— Max Kennerly (@MaxKennerly) May 25, 2023

The EPA estimated in 2009 that there were 110.1 million acres of wetlands in the continental United States, compared to an estimated 220 million in the 1600s. Much of the decrease has been attributed to the drainage of the ecosystems in order to serve agriculture, mining, and urban development.

It is unclear how much of the country’s wetlands would immediately be affected by the decision, but Justice Kavanaugh pointed out that the ruling “may leave long-regulated and long accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.” As an example, Kavanaugh pointed to the lands surrounding the Mississippi River and the Chesapeake Bay, where regulations of levees and adjacent (but not adjoining) wetlands are important factors in controlling and preserving the natural environment. “As those examples reveal, there is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands,” he wrote. “Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.”