In landmark 5-4 ruling, Supreme Court says Environmental Protection Agency can't protect wetlands not tied to streams

Signs posted by the Idaho couple whose building project EPA
blocked, prompting them to file suit. (Associated Press photo)

The U.S. Supreme Court ended one of the longest battles over the Clean Water Act Thursday, ruling 5-4 that the Environmental Protection Agency's power to protect wetlands does not extend as far as the high court said it did in another narrow decision 17 years ago. The decision has "broad ramifications for the environment, agriculture, energy and mining," The Associated Press reports.

At issue was the act's phrase "waters of the United States," or WOTUS, which the court said in 2006 could be regulated if they had a "significant nexus" to nearby waterways. Thursday, in an opinion written by highly conservative Justice Samuel Alito, the court said WOTUS "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." Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined the opinion.

Conservative Justice Brett Kavanaugh dissented, saying the Army Corps of Engineers “has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a manmade dike or barrier, natural river berm, beach dune, or the like. . . . We should not create ambiguity where none exists. And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining,’ as the Court does today.”

Richard J. Lazarus, a professor of law at Harvard Law School, went back even farther in an op-ed for The Washington Post, citing a unanimous 1985 decision of the court that allowed EPA to protect wetlands. The latest decision "could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law's direct protection," Lazarus writes. Connor Griffin of the Louisville Courier Journal explains, "Generally, wetlands are areas of land covered with water or saturated for some or all of the year. Marshes are an example of this habitat. Boasting biodiversity on par with rainforests and coral reefs, wetlands provide critical habitat for animals like waterfowl, and are a hotbed for plant life."

The case was filed by an Idaho couple who got a local permit 15 years ago build about 300 feet from Priest Lake and filled in part of a wetland with sand and gravel, Reuters reports. The EPA blocked them, they sued, and the high court ruled 9-0 Thursday that EPA overstepped. As the case moved through the courts, Republican and Democratic administrations redefined WOTUS in various ways, some going beyond the wetlands question and generating more court action. "In 2015 the Obama administration widened the scope of the law to cover even ephemeral streams and ponds," Robert Barnes reports for the Post. "The Trump-era EPA repealed the rule and in 2019 created a new, weaker one. The Biden administration has tried to strike a balance by undoing the Trump-era rule and redefining EPA oversight as covering 'traditional navigable waters,' including interstate waterways and upstream water sources that influence the health and quality of those waterways."