Road infrastructure groups cheered a Supreme Court decision last Thursday narrowing the definition of which streams and wetlands are protected by the Clean Water Act.
The top court’s ruling on Sackett v. Environmental Protection Agency weighs in on a 50-year debate over the definition of “waters of the United States” (WOTUS) by establishing a more stringent test to determine whether the Clean Water Act applies to a wetland.
“Today’s Supreme Court decision removes un-necessary and un-supportable impediments to transportation improvements across the country,” said David Bauer, president of the American Road & Transportation Builders Association in a statement. “With Sackett as a guide, we urge the EPA to pursue common sense strategies that complement our nation’s infrastructure and environmental goals.”
The ruling appears to invalidate a freshly inked Biden administration EPA rule that broadens the definition of WOTUS. The administration’s rule applies to any water that shares a “significant nexus” with a WOTUS.
In March, Congress passed a Congressional Review Act joint resolution of disapproval that overturned the regulation. Biden vetoed the CRA on April 6.
A coalition of 17 industry groups that includes ARTBA, have sued in the U.S. District Court for the Southern District of Texas to try to overturn the rule.
The administration may now have to re-write the measure.
“In light of this decision, the agencies will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett,” the EPA and the U.S. Army Corps of Engineers, which jointly oversee the Clean Water Act, said in a statement. “The agencies continue to review the decision to determine next steps.”
The definition of WOTUS has been an issue since Congress passed the Clean Water Act 50 years ago but declined to define the waters, noted the Roosevelt Institute in an October 2022 report on the conflict. The definition of WOTUS has instead been shaped over the years by various presidential administrations, the Army Corps of Engineers and judicial decisions.
In their ruling, the justices note they are wading into a “a contentious and difficult task” in trying to determine the meaning of WOTUS.
The unanimous decision determines that the Clean Water Act only applies to wetlands that have a “continuous surface connection” to WOTUS, restricting which types of water the federal government can regulate. In the case, an Idaho couple sued after the EPA and the U.S. Army Corps of Engineers required a permit for a wetland located on their property.
Opponents like road transportation groups said the EPA’s definition would have required permits for roadside ditches, requiring additional permitting and pushing up costs.
“The decision … makes clear that the Biden administration must rewrite its current Waters of the U.S. rule, which relies on the flawed ‘significant nexus’ test that the Court roundly dismissed today,” said Stephen Sandherr, the CEO of Associated General Contractors of America in a statement. “Attempting to redefine nearly every wet area in the U.S. as a federal water is clearly not legal.”
But several top Democrats and environmental activists defended the EPA’s rule and warned the SCOTUS ruling would lead to more pollution.
The ruling “undoes a half-century of progress generated by the Clean Water Act,” said Sam Sankar of the environmental group Earthjustice. “More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers.”
Rick Larsen, the ranking Democrat on the House Transportation & Infrastructure Committee, called the ruling “a massive gift for polluters.”
“The idea that waters are only connected if they are contiguous on the surface flies in the face of everything, we know about protecting our water and the communities who depend on it.”