The U.S. Supreme Court limited the authority of the Environmental Protection Agency (EPA) over wetlands in a decision that will have broad implications for mining and construction projects. With a unanimous decision in Sackett v. EPA, the court ruled the agency does not have the power to regulate discharges into wetlands unless they are connected to navigable waters.

The decision will more narrowly define what constitutes a wetland for the EPA’s jurisdiction under the Clean Water Act (CWA), which prohibits the discharge of pollutants, including rocks and sand, into navigable waters. The EPA has maintained a broad interpretation of the CWA to include all waters of the U.S. (WOTUS).

The ruling restores some common sense and clarity to how the CWA is implemented, explained Mark Compton, executive director for the American Exploration and Mining Association. “By rejecting the so-called ‘significant nexus test,’ this decision will help industries like ours better and more easily understand whether waters fall under federal jurisdiction or will be regulated by the states. The court also served notice that the Biden administration’s WOTUS rule is overly broad and must be revised. We are very pleased with the outcome.”

The ruling was a victory for the Sackett family, who wanted to build on their land near Priest Lake in Idaho. The EPA and the Army Corps of Engineers determined their land was a wetland and they were told they would need a federal permit to build on their land. Their battle with the courts lasted 16 years. “The Supreme Court showed there are clear limits to the federal government’s reach when it comes to jurisdiction over water and land features,” said Rich Nolan, president and CEO of the National Mining Association. “Working together, the federal government and the states can effectively protect water resources while allowing responsible projects to move forward.”

Nolan agreed that the Biden administration must now recognize its own overreach in the introduction of the latest WOTUS rule, which has already been stayed in half the country, saying the administration should act immediately to rescind it.

The last time SCOTUS ruled on the CWA (Rapanos, 2006), it couldn’t agree on how to limit EPA’s authority over wetlands. The EPA and other agencies, as well as lower courts, adopted Justice Anthony Kennedy’s opinion that federal jurisdiction extended to land that has a significant nexus to a waterway. While all nine justices ruled for the Sacketts, which removed the significant nexus test, they disagreed on the scope of federal power. However, the court moved to restrain an overreaching agency, which arguably could be one of the court’s most important decisions.

Steve Fiscor, Publisher & Editor-in-Chief, E&MJ