U.S. Supreme Court rejects Biden wetlands regulation, ruling for Idaho couple

Major environmental decision overturns Environmental Protection Agency’s definition of wetlands that fall under the agency’s jurisdiction

By Jacob Fischler States Newsroom

The U.S. Supreme Court in a major environmental decision on May 25 overturned the Environmental Protection Agency’s definition of wetlands that fall under the agency’s jurisdiction, siding with an Idaho couple who said they should not be required to obtain federal permits to build on their property that lacked any navigable water.

All nine justices agreed to overturn the 9th Circuit Court of Appeals’ ruling that endorsed the Biden administration’s broad definition of waters of the United States, or WOTUS, the term for what falls under federal enforcement of the Clean Water Act.

But they published four separate opinions that showed a 5-4 split in how far they would allow federal jurisdiction to extend, with the conservative majority ruling to significantly narrow federal agency power.

“It is a substantial change to the way wetlands have been regulated under the Clean Water Act” since the law’s 1972 enactment, said Ashley Peck, an environmental litigator and water quality adviser at Holland and Hart LLP. “It looks like it will eliminate jurisdiction for a huge amount of wetlands, particularly in the arid West.”

Conservative Justice Brett M. Kavanaugh and the court’s three liberals concurred with the ruling in favor of Idaho landowners Michael and Chantell Sackett, but objected to the majority’s narrow new standard, which they said introduced more uncertainty and would hurt water quality.

The Sacketts had sought to build on a piece of their property separated by a 30foot road from a tributary to Priest Lake in the Idaho panhandle. Lower courts held they needed federal environmental approvals because of their land’s connection to Priest Lake.

The Supreme Court heard oral arguments in their appeal in October 2022.

Members of Idaho’s congressional delegation have advocated against the implementation of the Biden administration’s definition and praised the court’s May 25 ruling.

“I am glad to see the court provide needed clarity on this issue,” Idaho Republican Rep. Mike Simpson said in a statement. “The EPA simply cannot continue in its attempt to regulate every puddle, ditch and stream in this country. This decision is a victory for Idaho and the many property owners, farmers and ranchers who are left to deal with the very real consequences of regulatory uncertainty.”

The decision is a “powerful affirmation of individual property rights,” Congressman Russ Fulcher, R-Idaho, said in a statement.

“For Idahoans, water is a lifeline and local control has a long, proud tradition,” Fulcher said. “I commend the court’s recognition of the Sacketts’ constitutional rights and the significance of protecting Idaho’s ranchers, farmers, irrigators and landowners from regulatory overreach.”

The Idaho Conservation League, which filed an amicus — or friend of the court — brief in the case, said the ruling was devastating for the health of Priest Lake, and it reverberates further than just North Idaho.

“In deciding that water quality protections only apply to wetlands that have a visible connection to streams and lakes, the Court opened the door nationwide for waste disposal to run amok, allowing pollution to be disposed of at-will and with no accountability,” said ICL Conservation Program Director Marie Callaway Kellner in a statement.

“American taxpayers will ultimately pay for it — whether through higher wastewater treatment costs borne by communities instead of polluters, or, even worse, by impacts to human and environmental health,” Kellner added. “This ruling undermines the Environmental Protection Agency’s ability to protect public health, and sends the message that private development that benefits a few individuals is more important than clean water for all. It is a sad day when the U.S. Supreme Court protects polluters over people, fish and wildlife.”

‘Continuous surface connection’ test

Writing for the court’s majority, Justice Samuel Alito said the Clean Water Act applies only to wetlands with a “continuous surface connection” to the navigable waters like streams, lakes, oceans and rivers that are indisputably covered by the law.

The Biden administration’s definition — which stated an area with an ecologically “significant nexus” to a navigable waterway was subject to Clean Water Act enforcement — would put nearly all waters and wetlands in the country under federal jurisdiction, with little room for state enforcement, Alito wrote.

Wetlands must be virtually indistinguishable from the navigable waters for federal jurisdiction to apply, he wrote.

That standard would limit the EPA and Army Corps of Engineers’ authority to regulate wetlands, even in areas where no one had disputed federal power.

Alito, who was appointed to the court by President George W. Bush, praised the Clean Water Act for effectively curtailing water pollution. But he said the law “is a potent weapon” with severe penalties, and its power should be checked.

The text of the law uses the terms “navigable waters,” which has a wellknown definition, and “waters of the United States,” which does not, Alito wrote.

The EPA, Army Corps of Engineers and various courts have held that waters of the United States can include tributaries to navigable waters and even dry land with an ecological connection to those tributaries.

The inclusion in the statute of “navigable waters” means Congress was focused on the permanent lakes, rivers, streams and oceans that are generally included in that definition, even if some wetlands can also be regulated under the law, Alito wrote.

“Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute,” Alito said.

Some adjacent wetlands can still be considered waters of the United States, Alito said. But for the federal law to apply to a wetland, it “must be indistinguishably part of a” covered water, he wrote.

The ruling represents a sweeping shift in wetlands regulation, even for a conservative court with a recent history of restricting federal regulations.

“This was a broader brush than I expect- ed,” said Peck, of Holland and Hart. “This is always a possibility with this court, for certain, but I wasn’t necessarily expecting to have the whole regulatory regime upended.”

In a statement, President Joe Biden called the decision “disappointing.”

“Today’s decision 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.”

Kavanaugh and liberals band together Kavanaugh, with the court’s three liberals joining, wrote that a continuous surface connection to navigable waters was not strictly necessary for wetlands to fall under federal jurisdiction. Waters can be adjacent without that connection, they said.

Kavanaugh, in a notable departure from the usual alliance on the court, said the majority rewrote the law and introduced new questions about wetlands that have long been subject to federal jurisdiction.

“The court’s new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States,” he wrote.

Bouquets:

•This isn’t as much a Bouquet as it is a word of caution for those planning to paddle down Pack River. I floated with a crew of canoeists and kayakers on Memorial Day weekend and the mosquitoes were horrible. It wasn’t so bad while you were on the water with a gentle breeze keeping them at bay, but when stopping for a break on a sandbar be prepared to run for your life. The worst was taking out at the jumping bridge near Northside Elementary. At one point, I looked down and saw my legs were more mosquito than skin. I’ve had pesky bug days on the Pack before, but this was something from a horror movie. It seems we’re having a bad mosquito year. At one point I thought we’d actually see someone lifted from their boat and carried away by the little buggers. If you’re floating the Pack soon, don’t forget the bug spray. Or better yet, a mosquito net.

Barbs:

• Let me introduce many of you in Bonner County to a new automotive part that you might not