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“The Supreme Court [last] Thursday established a more stringent test to determine whether the Clean Water Act applies to a wetland. The ruling was a setback for the Environmental Protection Agency and a victory for an Idaho couple, Michael and Chantell Sackett, who have been battling with the federal government for over 15 years in their efforts to build a house on an empty lot near a large lake.” SCOTUSblog
The right supports the decision, arguing that the EPA had overstepped its authority.
“For 16 years the couple has been battling the bureaucracy to build a home… The Clean Water Act (CWA) authorizes EPA to regulate only ‘navigable waters’ in interstate commerce. Yet the EPA said the Sacketts’ property was connected to a wetland some 30 feet away, which was connected to a ditch that connected to a nonnavigable creek that connected to a lake. Follow that?…
“Americans anywhere in the country could have their backyard declared a wetland, but they wouldn’t know it until the EPA swoops in and threatens enormous penalties for pouring herbicide on weeds. EPA advises landowners to solicit the Army Corps’ opinion before doing anything with their property. But 75% of the time the Corps claims jurisdiction…
“Does federal jurisdiction really ‘encompass any backyard that is soggy enough for some minimum period of time?’ Justice Samuel Alito asks in the majority opinion… ‘How about ditches, swimming pools, and puddles?’… The current High Court’s project reining in a runaway administrative state is one of the most important in Court history. The Sacketts’ victory after their long ordeal is a triumph for the liberty of every American.”
Editorial Board, Wall Street Journal
“The law left landowners in a perpetual state of uncertainty in which the only way to know what ‘waters’ were covered by WOTUS was either to ask the government (usually producing a negative answer, but only after much expense and delay) or take one’s chances and possibly end up with crippling fines and jail time…
“The regulators have preferred to treat WOTUS as a sword of Damocles rather than a law, instructing field agents to make case-by-case decisions pursuant to voluminous manuals, often with major regional variations…
“Nothing is more central to the rule of written law than that the law be certain and knowable… Congress did the Court no favors in writing either the statutory definition or the amendment in a way that engendered half a century of uncertainty. But we think Justice Alito’s resolution has the virtue of clarity: It is much easier for owners of property to determine what waters adjoin navigable waters than to enter into disputations of what is or is not nearby enough to qualify. If Congress wishes to go further, we recommend that it use language that will not take 51 years to decipher.”
The Editors, National Review
“Despite what you see in the liberal press, Sackett v. EPA did not ‘gut’ the Clean Water Act. Factories, power plants, and homes that abut a body of water are still subject to EPA jurisdiction. So is a property that abuts wetlands directly connected to any standing body of water. But homeowners like the Sacketts, whose property is separated from wetlands by a 30-foot road that touches a creek that feeds into a lake, no longer have to worry…
“This country used to be able to build things. But starting in the 1970s, Congress and the federal government have made it increasingly difficult for anyone to jump through all the regulatory hoops necessary to get projects started. More needs to be done, especially in Congress, but last Thursday, a unanimous Supreme Court acknowledged the EPA had gone too far, and that is a good start.”
Editorial Board, Washington Examiner
The left criticizes the decision, arguing that it ignores the plain text of the law and that it will harm the environment.
The left criticizes the decision, arguing that it ignores the plain text of the law and that it will harm the environment.
“The Clean Water Act requires a permit for dumping pollutants — and this includes the backfilling that the Sacketts were doing to prepare their lot — into the ‘waters of the United States.’ Such waters are explicitly defined to include ‘wetlands’ that are ‘adjacent’ to streams, rivers and other navigable bodies of water covered by the law…
“The majority agrees on all this but then waves its magic statutory wand to redefine, and narrow, the meaning of ‘adjacent.’ It transforms the definition to apply solely to wetlands that are actually adjoining — that have a ‘continuous surface connection’ — to the larger body. This disrespects — actually, it ignores — the law’s text and traditional methods of statutory interpretation…
“As Kavanaugh noted, dictionary ‘definitions of ‘adjacent’ are notably explicit that two things need not touch each other in order to be adjacent.’ In fact, other provisions of the law use the narrower term, ‘adjoining.’ Congress knew when to use adjoining if that’s what it meant. More Kavanaugh: ‘As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.’… The majority’s approach blithely dismissed some 45 years of consistent interpretation through eight presidential administrations.”
Ruth Marcus, Washington Post
“The fundamental challenge facing any water regulator is that water systems are interconnected. As Kavanaugh writes, ‘because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.’…
“This explains why Congress not only extended the Clean Water Act to significant waterways, it also extended it to wetlands that are ‘adjacent’ to those waterways. It makes no sense to prohibit pollution dumped directly into the mighty Mississippi, but to permit pollution to be dumped on nearby wetlands that feed directly into the river.”
Ian Millhiser, Vox
“Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into ‘navigable waters,’ but Congress also expressly defined that to include all ‘waters of the United States.’ Since the mid-1970s, the courts have uniformly agreed that Congress intended with that expansive definition to extend the law’s protections far beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into the nation’s major rivers and lakes…
“Congress spoke clearly in the Clean Water Act about its ambitions and backed that intent up with deliberately sweeping language to provide the EPA with the discretionary authority it needed to realize those goals. Our nation’s waters are far cleaner as a result. Yet, for the second time in less than a year, an activist Supreme Court has deployed the false label of ‘separation of powers’ to deny the other two branches the legal tools they require to safeguard the public…
“The impact of the majority ruling is potentially enormous. It could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law’s direct protection.”
Richard J. Lazarus, Washington Post
