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June 30, 2023

Supreme Court Rules on EPA Application of Clean Water Act

The EPA’s power to regulate wetlands has been constrained by the Supreme Court in an opinion issued on May 25, 2023. The lawsuit was initially brought by a couple when the EPA ordered the couple to restore their lot after they moved dirt in preparation for building a house.  The EPA contended that the couple’s property was covered by the Clean Water Act’s prohibition on discharging pollutants into the “waters of the United States” because it contained wetlands and was near a ditch that fed into a creek that fed into a navigable lake. After discussing the reasonable interpretation of “waters of the United States,” the Court rejected the EPA’s arguments and reversed and remanded the case.  The majority opinion replaced a test for whether wetlands had a “significant nexus” to nearby waters with an evaluation of whether there was a “continuous surface connection” that makes the wetlands indistinguishable from the nearby waters.  While environmentalists estimate that this limitation could remove millions of acres of wetlands from regulation by the Clean Water Act, it could be seen as a win for property rights groups and developers as permitting could be more flexible.

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