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Supreme Court case likely to have huge impact on Clean Water Act

Regulations

Supreme Court case likely to have huge impact on Clean Water Act

There are substantial implications for developers from the pending ruling.


By Peter Fabris, Contributing Editor | May 8, 2023
The U.S. Supreme Court as composed June 30, 2022 to present. Photo: Fred Schilling, Collection of the Supreme Court of the United States

The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States

A case before the Supreme Court will likely determine how the Clean Water Act is interpreted and the ruling could open up new areas for development within or adjacent to wetlands.

Late last year, the Biden administration issued a new definition of “waters of the United States,” which broadened the numbers of streams and wetlands subject to regulations of the Act. States and national advocacy groups have sued to reverse that provision, and a federal judge has halted it in 24 states.

A case before the Supreme Court, Sackett v. Environmental Protection Agency, may settle the issue. Environmental advocates worry that the justices will gut the Clean Water Act by imposing a narrow reading on what counts as one of the “waters of the United States.”

The court could decide that the federal government doesn’t have authority to protect as many as of half of the country’s wetlands. That action could make many more acres of land nationwide available to developers.

The director of federal water policy at the Natural Resources Defense Council told Grist that the case’s impact is “hard to overstate.” It could make it a “huge problem” to achieve the organization’s water quality goals, he said.

But real estate developers would cheer such an outcome as it would eliminate uncertainty over which areas are subject to the Act, and how they could build on parcels in wetlands areas.

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