U.S. Supreme Court rejects Biden wetlands regulation; what that means for the Chesapeake Bay

Wetlands unique to the Chesapeake Bay’s watershed will lose protection from being dredged and filled without a permit

By: - May 26, 2023 7:49 am
A heron is perched on a piling at sunrise on the Chesapeake Bay in Chesapeake Beach.

A heron is perched on a piling at sunrise on the Chesapeake Bay in Chesapeake Beach (Photo by yvonnenavalaney/stock.adobe.com/Maryland Matters).

The U.S. Supreme Court in a major environmental decision on  Thursday overturned the Environmental Protection Agency’s definition of wetlands that fall under the agency’s jurisdiction, siding with an Idaho couple who’d said they should not be required to obtain federal permits to build on their property that lacked any navigable water.

According to the Bay Foundation, some states in the Bay watershed — Maryland, Pennsylvania, and Virginia — have state regulations that could offer some coverage for wetlands that the EPA can no longer regulate.
But loopholes, waivers, and limited enforcement by state officials could leave wetlands at risk. The danger is greater in Delaware and West Virginia, which mirrored federal law in lieu of establishing their own state protections, according to the organization.

Chesapeake Bay Foundation Vice President of Litigation Jon Mueller issued a statement about the decision:“This dangerous decision risks damaging decades-long efforts by multiple states, federal agencies, and local jurisdictions to restore the Bay and its waterways. States without strong wetlands protections could now abandon their Chesapeake Clean Water Blueprint responsibility to reduce nitrogen, phosphorus, and sediment pollution in those areas because they are no longer covered by the Clean Water Act,” he said. “…Far from clarifying which waters are protected by the Clean Water Act, this ruling only sets us up for continued litigation and uncertainty while limiting our ability to protect and preserve the natural wonder we all treasure. The Bay, its tributaries, and the 18 million people living in its watershed deserve better.”

Kavanaugh and liberals band together

Kavanaugh, with the court’s three liberals joining, wrote that a continuous surface connection to navigable waters was not strictly necessary for wetlands to fall under federal jurisdiction. Waters can be adjacent without that connection, they said.

Kavanaugh, in a notable departure from the usual alliance on the court, said the majority rewrote the law and introduced new questions about wetlands that have long been subject to federal jurisdiction.

“The Court’s new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States,” he wrote.

Kagan blasts judicial policymaking

Justice Elena Kagan wrote a separate concurring opinion with fellow liberal Justices Sonia Sotomayor and Ketanji Brown Jackson that criticized the court for policymaking.

Drawing parallels with her dissent in a decision last year that restricted the EPA’s power to regulate carbon emissions at existing power plants, Kagan wrote that the court’s conservatives simply substituted their policy preferences for what Congress actually enacted.

The majority in this case invented a standard that laws that impact private property must have “exceedingly clear language,” Kagan wrote, putting “a thumb on the scale for property owners,” and disregarding the public interest in clean water.

“A court may not rewrite Congress’s plain instructions because they go further than preferred,” she said. “That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) ‘adjacent’ to covered waters.”

Lengthy legal fight

The case is part of a decades-long legal conflict to define the reach of the Clean Water Act.

Alito’s majority opinion referenced the years of shifting definitions and the uncertainty provided in various court cases and agency regulations, calling it “the persistent problem that we must address.”

In general, agricultural interests, home builders and Republican officials have argued that the federal regulations impose an undue burden and should be applied narrowly.

“The Supreme Court just ruled that Biden’s overreaching WOTUS interpretation is unconstitutional,” Missouri Attorney General Andrew Bailey, a Republican, said on Twitter. “This is a huge win for farmers across America.”

Environmental groups and Democrats have argued for a broader definition that they say allows the federal government to offer important protections.

“Federal protections that don’t depend on local politics or regional polluter influence are essential to vulnerable and disadvantaged communities nationwide,” Jim Murphy, the director of legal advocacy for the National Wildlife Federation, said in a statement “The court’s ruling removes these vital protections from important streams and wetlands in every state.”

Murphy called on Congress and state governments to adopt stronger standards.

The ruling doesn’t necessarily limit the issue’s long-running uncertainty, Peck said. While it settles federal jurisdiction for now, states, especially in the West, may decide to strengthen their own clean water laws and regulations, she said.

Reaction from Congress

Several Republicans in Congress responded to the ruling with enthusiasm.

“The Supreme Court’s decision is clearly a decisive win for America’s farmers, small businesses, property owners, and those who help build our infrastructure,” U.S. House Transportation and Infrastructure Chairman Sam Graves of Missouri and Water Resources and Environment Subcommittee Chairman David Rouzer of North Carolina said in a joint statement.

“This is great news for rural America!” Minnesota Republican Pete Stauber, the chairman of the U.S. House Natural Resources Subcommittee on Energy and Mineral Resources, tweeted.

“I’m glad to see the Supreme Court rightfully and unanimously blocked Biden’s ill-conceived #WOTUS rule,” U.S. Sen. Joni Ernst of Iowa wrote on Twitter. “This is a big WIN for Iowa, where nearly every industry is impacted.”

“Kansans are best positioned to conserve our land and natural resources,” Kansas Republican U.S. Rep. Ron Estes said. “And they don’t need Biden’s bureaucrats 1000 miles away to regulate the rainwater that accumulates in ditches in rural parts of our state.”

Fewer Democrats publicly commented on the ruling, but Senate Environment and Public Works Chairman Tom Carper of Delaware said the decision undermines the EPA’s ability to effectively regulate water pollution and puts “America’s remaining wetlands in jeopardy.”

“I strongly disagree with the Court’s decision, and I am deeply concerned about the future impacts of this case on clean drinking water, coastal and flood-prone communities, and wildlife across our nation,” Carper said.

Danielle Gaines, the editor of Maryland Matters, a sibling site of the Pennsylvania Capital-Star, contributed to this story.

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Jacob Fischler
Jacob Fischler

Jacob covers federal policy as a senior reporter for States Newsroom. Based in Oregon, he focuses on Western issues. His coverage areas include climate, energy development, public lands and infrastructure.