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How the EPA Supreme Court ruling will affect U.S. wetlands and drinking water

Peat bogs. Swamp. Swamps. Fens. All are examples of wetlands.

But the type of wetland that enjoys protection under federal law is the subject of wide dispute, one of which was reset by a sweeping ruling by the state Supreme Court on Thursday. -United.

At issue is the scope of the 51-year-old Clean Water Act, and how courts should determine what counts as “United States waters” under that law. Nearly two decades ago, the court ruled that wetlands are protected by the Clean Water Act if they have a “significant connection” to regulated waters.

The Supreme Court ruled that rule no longer applied and said the Environmental Protection Agency’s interpretation of its powers went too far, giving it regulatory power beyond what Congress had authorized. Here’s what you need to know about the decision.

Writing for five court justices, Judge Samuel A. Alito ruled that the Clean Water Act applies only to “wetlands having a continuous surface connection with bodies that are ‘United States waters.’ in their own right, so that they are ‘indistinguishable’ from these waters. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.

How does this decision affect protected wetlands?

Some environmental groups and legal experts believe the ruling will remove federal protection from half of all wetlands in the continental United States. Earthjustice, an environmental law firm, estimates the ruling will prevent the EPA from placing federal protections on as many as 118 million acres of wetlands, an area larger than the landmass. from California. Those estimates could not immediately be confirmed, but the decision should give farmers, homebuilders and other developers much more leeway to disturb land previously regulated under the Clean Water Act.

What are the potential environmental impacts?

The decision affects one of the EPA’s most fundamental authorities – its ability to protect upstream waters to protect downstream water quality for drinking water supplies and wildlife. Experts say greater development upstream could lead to the formation of silt and pollutants damaging downstream waters and habitat, and reduce the flood control and groundwater recharge benefits of protected wetlands.

Where did the judges agree and disagree?

All the judges thought the EPA got wrong about the couple who brought the case — Michael and Chantell Sackett, who want to build a home on their property near one of Idaho’s biggest waterways, Priest Lake.

But the judges disagreed on other details.

Judge Brett M. Kavanaugh challenged the majority decision that the EPA does not have the authority to regulate wetlands “separated from covered water” by a dike, levee, or other barrier.

“The Court concludes that wetlands in this second category are not covered as adjacent wetlands because these wetlands have no continuous surface connection with covered water – in other words, these wetlands are not adjacent to covered water,” he wrote. “I disagree because the (“adjacent”) enactment does not require a continuous surface connection between these wetlands and covered waters.”

Are there examples of areas that would lose their protection?

Conservationists have said wetlands in places such as the Everglades and Indiana Dunes National Parks will lose their protection. In his view, Kavanaugh highlighted major bodies of water such as the Chesapeake Bay and the Mississippi River, for which he said the court’s new interpretation could have real-world consequences.

“In particular, the Court’s overly narrow new test may leave long-regulated and long-accepted wetlands as capable of being regulated suddenly beyond the reach of agencies’ regulatory authority, with negative consequences for waters of the United States,” he wrote. . “For example, the Mississippi River has an extensive levee system to prevent flooding. According to the Court’s “continuous surface connection” test, the presence of these levees (the equivalent of a levee) would apparently prevent Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though adjacent wetlands are often an important part. flood control project.

Will this decision affect other environmental laws?

The decision could affect much more than just this set of clean water rules, although its full potential is still a matter of debate.

Some environmentalists and legal experts say this could prevent the EPA from acting on many modern issues, especially climate change, or doing anything that could extend the authority of a federal agency beyond the previous limits. They point to Alito’s language requiring Congress to “adopt extremely clear language” about rules that may affect private property. They further point to trends in the court’s decisions and the cases it agrees to take that suggest the conservative-majority court is skeptical of the executive’s regulatory power.

“No environmental rule is safe as a result of this decision,” said Patrick Parenteau, environmental law expert at Vermont Law School.

But others say the decision is not so expansive. There are major differences between the Clean Water Act and other fundamental environmental laws in the parameters they establish around federal authority, said Kevin Minoli, a partner at law firm Alston & Bird and a former attorney at the Bureau. of the EPA General Counsel under Republican and Democratic leadership. administrative. That likely limits the influence Thursday’s decision could have on attempts to regulate air pollution, greenhouse gas emissions and chemicals.

“I don’t see the Supreme Court’s decision as an imminent threat to environmental regulations passed in other contexts,” Minoli said.


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