Sackett vs EPA - Supreme Court decision limits extent of Clean Water Act jurisdiction

​The U.S. Supreme Court Court on May 25 significantly curtailed the power of the Environmental Protection Agency to regulate the nation's wetlands and waterways. It was the court's second decision in a year limiting the ability of the agency to enact anti-pollution regulations and combat climate change.  Reporting by Nina Totenberg of National Public Radio quotes President Biden as calling the decision "disappointing." It "upends the legal framework that has protected America's waters for decades," he said. "It also defies the science that confirms the critical role of wetlands in safeguarding our nation's streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities."

Farmers and developers see it differently - this will enable them to use wetlands that were previously restricted.  The National Association of State Departments of Agriculture reports in a May 25 email that this decision in Sackett v. EPA clarifies states’ authority and brings hope of regulatory certainty for farmers.   NASDA CEO Ted McKinley says "The Supreme Court’s unanimous decision in Sackett v. EPA today comes as welcome news to farmers, landowners and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades,” McKinney said. “We take relief in this decision as the justices clearly state the ‘significant nexus theory is particularly implausible’ and the EPA has no statutory basis to impose the standard.”

The Des Moines Register in an May 25 article reports on the split decision:

• Majority: A majority of the court said that the lack of clarity about what types of waters are covered by the Clean Water Act was difficult for property owners to understand.
• A "staggering array of landowners," Alito wrote, "are at risk of criminal prosecution" if they don't realize their property is subject to federal environmental rules. Joining Alito's opinion were Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett ― all Republican appointees.

• Kavanaugh warns of repercussions: Justice Brett Kavanaugh, joined by three liberal justices, said that while he sided with the plaintiffs and against the EPA, he disagreed with the court's definition of what types of waters should be subject to government regulation. The court's ruling, Kavanaugh warned, would have "significant repercussions for water quality and flood control throughout the United States." Joining Kavanaugh, a Republican appointee, were Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, all Democratic appointees.
• Bottom line: The court's opinion adopts a new, narrower standard that will limit how much water the EPA may regulate. That's a win for developers and agricultural interests and a loss for environmentalists.

In a May 25 press release, EPA Administrator Michael S. Regan issued the following statement:
“As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility.
I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections. The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.
In 1972, an overwhelming bipartisan majority in Congress passed the Clean Water Act, giving EPA and Army Corp implementation responsibilities. In doing so, our leaders recognized that protecting our nation’s waters is vital to ensuring a thriving economy and agricultural sector, to sustaining diverse ecosystems, and to protecting the water our children drink. 
Over the past 50 years, we have made transformational progress — rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country. A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters — now and for future generations.”

This interpretation is another volley in the game of political football that the Clean Water Rule has become.  Previous reporting on the LWV UMRR Blog: 

1. EPA’s Clean Water Rule – Act Now to Share your Comments with EPAAct Now to Protect the Clean Water Rule With much fanfare ...
   
2. Changes to the "Waters of the US" rule will reduce protections to up to 50% of wetlands in the US​The EPA just announced the new Waters of the US (WOTUS) rule on Jan. 24 ...
   
3. WOTUS and the Clean Water Rule - Proposed Replacement Waters of the US Rule Open for Public Comment until April 15, 2019of Engineers’ proposed rule to replace the 2015 Clean Water Rule with a new rule that would leave ...
   
4. LWV UMRR Advocacy Update - and how you can get involved in comments to the proposed Clean Water Rule. This post provides an update on work we are doing in three areas; the Farm Bill, the Clean Water ...