Tuesday, June 6, 2023

Supreme Court limits regulation of some US wetlands, making them easier to develop and destroy

The US Supreme Court has stripped federal agencies of rights over millions of acres of wetlands, undermining a foundational environmental law enacted a half-century ago to clean up the nation’s badly polluted waters.

The 5-4 majority greatly expanded the ability of farmers, home builders and other developers to dig or fill wetlands near rivers, lakes and streams, finding that the government had gone too long in limiting such activities. have put.

Thursday’s ruling could nullify key parts of a rule the Biden administration put in place in December that two federal judges had already blocked from taking effect in 26 states. It’s the latest twist in a decades-long struggle by courts and regulators to determine which waters are subject to protection under the Clean Water Act.

Some experts say the fight over wetlands could now shift to the states, with red and blue states writing laws that take dramatically different approaches.

The high court’s decision comes after reducing federal power to cap carbon emissions from power plants in 2022 and signals a desire by the court’s liberal conservatives to limit environmental laws and agency powers.

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“This is one of the saddest chapters in the 50-year history of the Clean Water Act,” said Jim Murphy, an attorney with the National Wildlife Federation.

Industry and agriculture groups praised the decision.

“We are absolutely thrilled with the results,” said Travis Cushman, deputy general counsel for the American Farm Bureau Federation. “It’s the exact answer we’ve been asking for a long time.”

The court’s majority sided with an Idaho couple who sought to build a home near Priest Lake in the state’s panhandle. Chantelle and Michael Sackett objected when federal officials identified a marshy portion of the property as a wetland, requiring them to obtain a permit before filling it with rocks and soil.

Damien Schiff of the Pacific Legal Foundation, who represented the couple, said, “Now the case is finally over…they will be able to make proper use of their assets.”

While all nine justices agreed that the Sacketts’ property was not covered by the law, they disagreed on the definition of “waters of the United States” and which wetlands it included.

The majority opinion, authored by Justice Samuel Alito, echoed a 2006 opinion by the late Justice Antonin Scalia. It states that federally protected wetlands must be directly adjacent to a “relatively permanent” waterway “connected to traditional interstate navigable water” such as a river or ocean.

Alito wrote, “They must have had a continuous surface relationship with that water, making it difficult to determine where ‘water’ ends and ‘wetland’ begins.”

The court overruled a 17-year-old opinion by his former colleague, Anthony Kennedy, that described the covered wetlands as “significant nexus” to larger bodies of water. This was the standard for assessing whether a discharge required a permit under the landmark Environment Act of 1972. Opponents objected that the standard was vague and unworkable.

Justice Elena Kagan, one of the court’s three liberals, said Congress rewrote the law to reach a political decision about coming up with new ways to dilute the environmental protection powers granted to the Environmental Protection Agency.

“The Court will not allow the Clean (Water) Act to operate as directed by Congress,” Kagan wrote. “The courts, rather than Congress, will decide how much regulation is too much.”

EPA Administrator Michael Regan said the decision “ends a longstanding clean water protection” and the agency was considering its options.

The Biden administration’s rules replace a Trump-era rule that was struck down by federal courts and environmentalists said waterways were vulnerable to pollution.

Even after the latest court ruling, some experts said ambiguity remains — and will likely persist as the EPA and the Army Corps of Engineers create yet more rules consistent with court orders.

Boston real estate attorney Peter Alpert said landowners wanting to develop property near waterways would still need to hire consultants to “walk the land and find out if you’re in federal reach”. “There’s still a lot of skepticism about what’s in the gray area.”

According to the Southern Environmental Law Center, the ruling could reduce protections for at least 45 million acres of wetlands, an area the size of Florida.

“They just put massive wetlands at risk,” said Kelly Moser, an attorney for the center.

Justice Brett Kavanaugh said protections were likely stripped from the majority of wetlands that had long been considered regulated, including along the flood-prone Mississippi River.

Despite their important role in intercepting floodwaters and filtering pollutants, they may be losing wetland protection because they are not directly connected to the river, said an opinion concurring in the Sackett case but strongly disagreeing with the majority on broader issues. Were. ,

Experts said the decision would have a big impact in the arid Southwest, where some rivers and streams dry up amid rains. The court’s majority held that the Clean Water Act only protects wetlands associated with rivers and streams that are “relatively permanent” or “continuous.”

“Sustainable is a big deal because we really don’t have water for 10 months of the year,” said Maureen Gorsen, a California environmental and regulatory attorney.

Jim Murphy, director of legal advocacy for the National Wildlife Federation, said the ruling could prompt some developers to decide they are not required to seek permits for projects that could disturb the lakes.

Alpert, the Boston attorney, said those discussing settlements for wetland damage or building new ones to compensate for the damage may back out.

“Everyone involved in enforcement work … is going to pause talks with the agencies right now and ask their advisors whether there is any reason to talk to the government under this decision,” he said.

Murphy of the National Wildlife Federation said environmental advocates will push Congress and states to “plug some of the gaps created by this decision.”

But Congress showed in March it was in no mood to do so, voting to overturn the administration’s wetlands rules and urging President Joe Biden to veto them.

State governments could become another battleground. Stricter environmental regulations than more than a dozen federal regulations prohibit it.

“Depending on what state you’re in, you’re going to see a patchwork of regulation,” said Ashley Peck, an environmental attorney in Salt Lake City.

The Supreme Court’s decision will create a “‘red state’ and a ‘blue state’ approach” to water conservation, said Kara Horowitz of the UCLA School of Law.

Reporters Mark Sherman and Jessica Gresco in Washington contributed to this story.

The Associated Press receives support from the Walton Family Foundation for its coverage of water and environmental policy. AP is solely responsible for all content. For all of AP’s environment coverage, visit https://apnews.com/hub/climate-and-environment

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