U.S. Supreme Court limits federal water regulations; Arkansas lawmakers commend decision

Ruling cheered by state officials

FILE - A road bisects a wetland on June 20, 2019, near Kulm, N.D. The Supreme Court has made it harder for the federal government to police water pollution. The decision from the court on Thursday, May 25, 2023, strips protections from wetlands that are isolated from larger bodies of water. It’s the second ruling in as many years in which a conservative majority has narrowed the reach of environmental regulations. (AP Photo/Charlie Riedel, File)
FILE - A road bisects a wetland on June 20, 2019, near Kulm, N.D. The Supreme Court has made it harder for the federal government to police water pollution. The decision from the court on Thursday, May 25, 2023, strips protections from wetlands that are isolated from larger bodies of water. It’s the second ruling in as many years in which a conservative majority has narrowed the reach of environmental regulations. (AP Photo/Charlie Riedel, File)

WASHINGTON -- The U.S. Supreme Court on Thursday curtailed federal water protections in an opinion limiting the Clean Water Act to bodies of water and nearby indistinct wetlands.

All nine justices sided with Michael and Chantell Sackett, an Idaho couple, over the Environmental Protection Agency, with justices ruling the agency overstepped its authority when addressing construction at the Sacketts' Priest Lake property and identified wetlands.

Justice Samuel Alito, in the court's 5-4 majority opinion, ruled the Clean Water Act's "waters of the United States" definition only applies to navigable waterways such as streams, rivers, and lakes, as well as wetlands with "a continuous surface connection" to these larger bodies of water. Regarding the Sacketts' property, the wetlands in question do not directly feed into Priest Lake.

The EPA notified the Sacketts about construction on the property in 2007, arguing an effort to backfill the lot with dirt violated the Clean Water Act and protections over discharges.

Questions surrounding the Clean Water Act's limitations have persisted since the law's enactment in 1972. Federal agencies in recent years have issued memoranda in line with two Supreme Court opinions from the court's 2006 Rapanos v. United States case. In a concurring opinion, Justice Anthony Kennedy wrote the Clean Water Act should apply to wetlands with a chemical, physical or biological linkage to a protected water body. Four justices issued a separate opinion stating agencies can apply regulations to wetlands with unbroken water to a protected waterway.

Brigit Rollins, a staff attorney at the nonpartisan National Agricultural Law Center in Fayetteville, said it is not surprising current justices did not advance Kennedy's "significant nexus" test given his solo support of the approach.

"[Kennedy] was really looking at more taking those wetlands and evaluating them on a case-by-case basis to determine do they have some kind of relationship to a water that we would otherwise see as a WOTUS," Rollins said.

"Given the makeup of the court, it's not terribly surprising to see they went ahead and adopted that sort of plurality opinion from Rapanos, the continuous surface connection test."

In his opinion issued Thursday, Alito ruled the "significant nexus" test is so broad it could apply to all bodies of water and wetlands.

Justice Brett Kavanaugh, a conservative member of the bench, and the Supreme Court's three liberal justices signed a concurring opinion siding with the Sacketts with questions regarding Alito's interpretation of the Clean Water Act.

Kavanaugh contended new protections under Alito's interpretation may not be effective in covering systems under more recent rules, such as the Mississippi River's levee system and the Chesapeake Bay.

"By narrowing the 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," Kavanaugh wrote.

Justice Elena Kagan led liberal justices in a separate opinion from the majority that favored the Sacketts. Kagan shared concerns about how the majority opinion will affect the EPA's authority to regulate bodies of water. Kagan cited last year's Supreme Court decision limiting the agency's ability to regulate power plant emissions under the Clean Air Act.

"There, the majority's non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way," she wrote.

"Here, that method prevents the EPA from keeping our country's waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court's appointment of itself as the national decision-maker on environmental policy."

While Alito did not cite the West Virginia v. EPA decision in the majority opinion, Rollins noted similarities in the language used in both cases.

"In some of its later sections, it talks about how the court requires Congress to enact exceedingly clear language if it wants to alter that balance between federal and state powers," she said.

Arkansas, under then-Attorney General Leslie Rutledge, joined a brief of amici curiae supporting the Sacketts. Tim Griffin, the state's previous lieutenant governor and former U.S. House of Representatives member, kept Arkansas in the legal challenge after becoming attorney general in January.

"This morning, the Supreme Court unanimously condemned the EPA's nearly two-decade-long quest to penalize the Sacketts for starting to build a home on their own property," Griffin told the Arkansas Democrat-Gazette in a statement.

"The Court correctly recognized that the EPA cannot regulate everything that might affect a puddle somewhere in the United States. I am proud to have supported the Sacketts here, and I will continue to fight against EPA overreach."

The Arkansas Farm Bureau signed a similar brief supporting the Sacketts' legal efforts.

EPA administrator Michael Regan expressed disappointment in the Supreme Court's decision, saying Thursday his agency is reviewing the opinions to determine the next regulatory steps.

"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," he continued.

President Joe Biden described the decision as an action taking "our country backwards."

"Today's decision upends the legal framework that has protected America's waters for decades. 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 well-being of children, families, and communities," he said.

As the Supreme Court considered the case's oral arguments, the Biden administration last December issued a new "waters of the United States" definition clarifying the water bodies protected under the Clean Water Act. Officials considered a prior "waters of the United States" rule and the Supreme Court's 2006 precedent in drafting the regulation.

Multiple states, including Arkansas, challenged the new "waters of the United States" rule. A federal judge in April issued a preliminary injunction favoring Arkansas and 23 other states opposing the definition.

Biden vetoed a congressional resolution in April attempting to nullify his administration's rule. Republican Reps. Rick Crawford of Jonesboro and Bruce Westerman of Hot Springs sponsored the House version, while Republican Sens. John Boozman of Rogers and Tom Cotton of Little Rock were sponsors of the Senate effort.

"The Supreme Court's 9-0 judgment against the EPA today makes clear that EPA's overreach has been egregious," Crawford said Thursday in a statement.

"In fact, the Court notes that the Biden Administration's position both encroached on states' regulatory authority and improperly threatened citizens with steep fines and jail time for unknowingly breaking the EPA's broad and vague standards. It is now time for the Biden Administration to repeal its latest WOTUS rule that is in plain opposition to the Court's decision and continues the EPA's efforts to control the private property rights of rural Americans."

In an interview with the Democrat-Gazette, Westerman offered "cheers to Alito."

"This out-of-control administrative state is using every tool they can muster to legislate from the administration," he said. "Thank goodness the court has been a backstop on this WOTUS rule."

Boozman described the ruling as "a win for farmers and ranchers as well as other private landowners who were under threat from burdensome federal overreach."

"The result will also rein in the Biden administration's attacks on rural America through sweeping environmental regulations," the senator added. "I'm pleased the Supreme Court is returning decision-making authority to citizens and their local and state authorities, delivering certainty and predictability to stakeholders and enabling economic growth."

Rollins said the Supreme Court's decision raises questions surrounding environmental regulations; the Supreme Court ruled in April 2020 that the Clean Water Act requires parties to secure a permit for direct discharges into navigable waters.

"That case might now have more import to EPA now that Sackett just narrowed the whole WOTUS scope," she said.

For the EPA, the agency's immediate future involves re-evaluating and adjusting its most recent "waters of the United States" rule to fit the Supreme Court's ruling.

"Are they going to adopt a new rule? Are they going to issue some kind of guidance document in the meantime?" Rollins said. "It's hard to say what their response is going to be."

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