Supreme Court limits regulation of some US wetlands, making it easier to develop and destroy them
A 5-4 majority significantly expanded the ability of farmers, homebuilders and other developers to dig up or fill wetlands near rivers, lakes and streams, finding the government had long overreached in limiting such activities.
The ruling Thursday may nullify key parts of a rule the Biden administration imposed in December, which two federal judges already had blocked from being enforced in 26 states. It’s the latest turn in a decades-old struggle by courts and regulators to determine which waters are subject to protection under the Clean Water Act.
Some experts say the battle over wetlands now may shift to states, with red and blue states writing laws that take dramatically different approaches.
The high court's decision follows one in 2022 curtailing federal power to reduce carbon emissions from power plants and indicates a willingness by the court’s emboldened conservatives to limit environmental laws and agency powers.
“This is one of the saddest chapters in the 50-year history of the Clean Water Act,” said
Industry and farm groups praised the ruling.
“We’re absolutely thrilled with the results,” said
The court's majority sided with an
“Now that the case is finally over ... they'll be able to make reasonable use of their property," said
While all nine justices agreed the Sacketts' property was not covered by the law, they disagreed over the definition of “waters of
The majority opinion, written by Justice
They also must have a “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” Alito wrote.
The court jettisoned a 17-year-old opinion by their former colleague,
Justice
“The court will not allow the Clean (Water) Act to work as
The Biden administration regulations replaced a Trump-era rule that federal courts had thrown out and environmentalists said left waterways vulnerable to pollution.
Even after the latest court ruling, some experts said ambiguities remain – and likely will persist as the
Landowners wishing to develop property near waterways will still need to hire consultants, “walk the land and figure out whether you’re in or out” of federal reach,
The ruling could scuttle protections for at least 45 million acres of wetlands, an area roughly the size of
“They just put huge swaths of wetlands at risk,” said
Justice
Despite their vital role in blocking flood waters and filtering out pollutants, those wetlands may lose protection because they aren’t directly connected to the river, he said in an opinion that concurred on the Sackett case but disagreed significantly with the majority on the broader issues.
The ruling will have a big impact in the arid Southwest, where some rivers and streams dry up between infrequent rainstorms, experts said. The court majority said the Clean Water Act protects only wetlands connected to rivers and streams that are “relatively permanent” or “continuous.”
“Continuous is a big deal because we don’t have water, really, for 10 months of the year,” said
The ruling might lead some developers to decide they don't need to seek permits for projects that could disturb wetlands, said
And those who are discussing settlements for wetland damage or building new ones to compensate for losses might back out, said Alpert, the
“Everybody involved in enforcement actions … is going to hit the pause button on negotiations with agencies right now and question with their consultants whether under this decision there is a reason to even be talking with the government,” he said.
Environmental advocates will prod
But
State governments may become another battleground. More than a dozen prohibit environmental regulations tougher than federal ones.
“You're going to see a patchwork of regulation depending on what state you are in,” said
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