UPDATED: Supreme Court Rules Against EPA in WOTUS Case, Limiting Agency's Power Over Water

Attorney: Likely leaves Biden administration to start all over again from scratch

The U.S. Supreme Court sided with a couple in a significant environmental case against the Environmental Protection Agency (EPA) over a plan to develop a small lot near Priest Lake in Idaho. This decision has national implications for water quality, agriculture, and development, the Waters of the U.S. (WOTUS) rule. The court was unanimous in finding that the land owned by the Idaho family was not subject to the Clean Water Act, but split 5-4 on the court's new test, which held that only wetlands that have a continuous surface connection to a body of water are covered by the law.

     The case focused on the interpretation of the 1972 Clean Water Act and asked for a clearer definition of what the law intended by giving the EPA authority to regulate the "waters of the United States."

     Justice Samuel Alito, joined by four conservative justices, wrote the opinion stating that the federal government could regulate water that has a "continuous surface connection" to major bodies of water. This ruling overturns an earlier decision by a federal appeals court that had supported the EPA.

     Alito said the EPA’s interpretation of its powers went too far. “We hold that the 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,” Alito wrote, quoting from past court opinions.

     Justice Elena Kagan wrote for the court’s liberals, comparing the ruling to last term’s decision limiting the EPA’s ability to combat climate change. “The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy,” she wrote, joined by Justice Sonia Sotomayor and Ketanji Brown Jackson.

     Justice Brett M. Kavanaugh wrote separately to object to the majority’s reading of the law. He wrote that the majority’s new test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents” and will have “significant repercussions for water quality and flood control throughout the United States.” Kagan, Sotomayor and Jackson joined Kavanaugh.

     Background. The case began when Michael and Chantell Sackett purchased a vacant lot in a residential subdivision in Idaho in 2004. They acquired the necessary county permits to develop the site, but the EPA argued that the land was subject to its review because it contained wetlands about 300 feet from Priest Lake.

     This case, having returned to the Supreme Court for the second time, was closely monitored by environmentalists, developers, and farming groups due to the ongoing debate over the extent of the EPA's jurisdiction beyond navigable lakes, rivers, and into smaller streams and wetlands.

     What it means. A court decision against the EPA, said Attorney Rafe Petersen, who represents miners, offshore wind developers and others seeking EPA permit, likely leaves the Biden administration to start all over again from scratch. “I don’t see how they get away from that,” Petersen said. “The Biden administration is really boxed into the corner.”

     Bottom line: The ruling trims the jurisdiction of EPA to regulate waters under the CWA to interstate and navigable waters and immediately adjacent wetlands.  It is a return to the traditional understanding of what Congress passed in the early 1970s.