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Supreme Court lands wetland protection blow for Idaho landowners

WASHINGTON — The Supreme Court on Thursday weakened a landmark water pollution law by ruling that an Idaho couple’s property does not include wetlands subject to federal oversight under the law.

The decision, in which all the judges agreed on the result but differed on the legal reasoning, concluded that the lands of Mike and Chantell Sackett fall outside the jurisdiction of the Clean Water Act 1972, of so they don’t need a federal permit to build on the property. The decision ends a years-long battle between the Sacketts and the federal government and is a victory for conservative groups and business interests opposed to broad enforcement of the water pollution law.

The ruling is another example of the Court’s conservative justices reaching a ruling that limits the broad power of federal agencies, a recurring theme in recent years.

In reaching its broader legal conclusion, the court ruled on a 5-4 vote in an opinion written by conservative judge Samuel Alito that the jurisdiction of the Clean Water Act extends only to wetlands that are “indistinguishable” from larger bodies of water by having a “continuous surface”. connection.”

Wetlands on the Sacketts’ property, he wrote, are “distinguishable from any possibly covered waters.”

The ruling will ease some of the burdens on landowners, including major business interests, Alito said, because the law “can be broad enough to criminalize mundane activities like moving land.”

Conservative Justice Brett Kavanaugh joined the court’s three liberal justices in disagreeing with the majority’s new test.

“By reducing wetland coverage by law to adjacent wetlands, the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant impacts on water quality. water and flood control across the United States,” he said. writing.

Under the court’s new approach, the ability to regulate the levee system on the Mississippi River and effectively police the Chesapeake Bay could be at risk, Kavanaugh said. Levees separating wetlands from the Mississippi River mean those wetlands could escape federal oversight and wetlands vital to the Chesapeake Bay could be filled in without requiring federal permits, he said.

In a separate opinion, liberal Justice Elena Kagan took aim at the majority for rewriting a law that Congress had enacted. She compared the decision with the court’s decision last year to limit the scope of the Clean Air Act as part of efforts to combat climate change.

“The vice in both cases is the same: the court’s appointment of itself as the national environmental policy maker,” she said.

The case saw the Sacketts return to the Supreme Court for the second time after justices ruled in their favor in an earlier case in 2012. Both cases involve the same underlying dispute: their efforts to build a property on land they own in Priest Lake, Idaho, portions of which are considered by the EPA to be a protected wetland, meaning the land is under federal jurisdiction and requires a permit to build there.

Chantell and Mike Sackett.Lawrence Hurley / E&E News

The legal dispute centered on whether the Sacketts could challenge an EPA compliance order in court after filling the affected area with gravel and sand without obtaining a permit. The struggle, which began in 2007, continued over whether the land was a wetland.

The Sacketts turned to the Supreme Court for the second time after the 9th United States Circuit Court of Appeals, based in San Francisco, ruled in August 2021 in favor of the federal government in its determination that the area was a wetland.

The law on how to define a wetland – of major interest to property developers and other commercial interests – has long been confusing and unresolved when the Supreme Court ruled on an earlier case on the question. In 2006, four justices said the Clean Water Act covered wetlands with a “continuous surface connection” to a waterway, but there was no clear majority. Judge Anthony Kennedy, who provided the fifth vote in that 5-4 decision, offered his own test, which said the law granted jurisdiction over wetlands with a “significant connection” to a waterway.

Successive presidential administrations have sought to clarify the law, with Democrats generally favoring greater federal power and Republicans, backed by business interests, saying the jurisdiction of the Clean Water Act should be limited.

In Thursday’s ruling, the court rejected the significant connection test and appeared to adopt the approach taken by the four-judge bloc in the 2006 case.

“The Sackett decision undoes half a century of progress generated by the Clean Water Act,” said Sam Sankar, attorney for environmental group Earthjustice. “Nearly 90 million acres of once-protected wetlands now face an existential threat from polluters and developers.”

The Biden administration finalized its own rule in December, which largely reverted to the interpretation that existed before the moves by the Obama and Trump administrations, though the new rule has already faced its own legal challenges. Following the Supreme Court’s decision, the EPA will now have to go back to the drawing board.


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