Supreme Court narrows WOTUS definition

Dive Brief:

  • In a unanimous decision, the U.S. Supreme Court on Thursday sided with an Idaho landowner couple and against the Environmental Protection Agency, effectively narrowing the scope of what types of bodies of water the federal government may regulate under the Clean Water Act. 
  • In Sackett v. EPA, a case that hinged on the definition of the term “waters of the United States” or WOTUS, justices held that the EPA and U.S. Army Corps of Engineers overstepped their jurisdictions by claiming oversight on a wetland located on the property of Michael and Chantell Sackett.
  • The ruling also effectively invalidates a Biden administration definition finalized late last year that attempted to expand which waters fell under WOTUS to those that shared a “significant nexus” with protected waterways, a move construction lawyers said could have added costs of up to $1 million per acre for construction site preparation. 

Dive Insight:

Several building groups applauded the decision. 

“Today’s decision provides long-awaited certainty for property owners and housing providers and properly curbs federal overreach,” said the National Apartment Association and National Multifamily Housing Council in a joint statement. “The apartment industry strongly supports protecting our water resources, but undue and confusing regulations would exacerbate our nationwide housing affordability crisis.”

The National Utility Contractors Association also called the decision a win. 

“Today’s Supreme Court decision removes many of the arbitrary and overly broad protection classifications our members faced in their infrastructure construction project plans,” said Doug Carlson, the association’s CEO, in a statement. “Many of our critical projects directly benefit the health of our communities and the environment, but nevertheless fall victim to a tangled mess of overlapping federal regulations and permitting requirements that produce endless delays.”

The Associated General Contractors of America said the ruling means the Biden administration must return to the drawing board on its recent definition of WOTUS.  

“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, AGC’s CEO. “Attempting to redefine nearly every wet area in the U.S. as a federal water is clearly not legal.”

Joe Bousquin
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