Roadside ditches, small wetlands and other minor waterways that don’t continuously connect to larger waterbodies cannot be regulated by the federal government, the U.S. Supreme Court ruled today.
Construction associations are cheering the decision on a federal legal battle that has lasted over a decade, saying it will clear up regulatory confusion and speed up infrastructure and other construction projects.
The ruling adopts a narrower definition of waters that can be regulated by the federal government. The Biden administration, as did the Obama administration, adopted a broader definition that construction groups criticized as unfairly including roadside ditches, and other small waters that only appeared after rains or did not connect to larger waterbodies.
“The Supreme Court has provided much-needed clarity on what is, and is not, a Water of the U.S.,” said Stephen E. Sandherr, CEO for the Associated General Contractors of America. “This decision will return consistency and sanity to the permitting process. The decision will allow vital infrastructure and development projects to proceed in a timely manner while still providing strong protections for the actual waters of the U.S.”
The AGC and other groups, such as the American Road & Transportation Builders Association, have fought the EPA in court for years on the issue, saying it delayed infrastructure and other development projects and added unnecessary costs.
“Today’s Supreme Court decision removes unnecessary and unsupportable impediments to transportation improvements across the country,” said ARTBA President & CEO David Bauer.
But as the construction groups celebrate, environmental groups are dismayed, saying the decision will undo advancements made under the Clean Water Act over the years. They say those smaller wetlands and waterways act as tributaries to streams and rivers, carrying pollution to larger bodies of water that are protected.
Defining "waters of the U.S."
The legal fight centers on a section of the Clean Water Act, enacted in 1972, that calls for regulating pollution entering “the waters of the United States,” a term that is not defined.
In 2004, Idaho property owners Michael and Chantell Sackett sued the EPA after it ordered them to stop building a home on property the agency said had wetlands that needed to be protected.
According to the Sacketts, their property does not contain a stream, river, lake or similar waterbody. The Sacketts’ property has wetlands on it that are separated from other wetlands by a 30-foot-wide road. The wetlands across the road are connected by a manmade ditch that leads to a creek that leads to a lake.
The Supreme Court has sent mixed signals in the past as to what constitutes “waters of the U.S.” and definitions have changed over the decades. A majority ruled in 2006 that wetlands must abut other regulated waters to be under federal authority.
In 2015, the Obama administration adopted the Waters of the United States (WOTUS) rule, which was repealed in 2019. The Trump administration rewrote those rules, introducing the Navigable Waters Protection Rule.
Those federal protections, which were thrown out by the Biden administration in favor of the broader WOTUS rule, focused on four categories: the oceans and navigable rivers, perennial and intermittent tributaries, certain lakes and ponds, and wetlands adjacent to jurisdictional waters. Bodies excluded from federal authority were those that “only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.” Those waters would be left to the states to regulate.
Rules to be rewritten
Today’s Supreme Court decision says the Clean Water Act extends only to wetlands that have a “continuous surface connection” to “waters of the U.S.” and are “indistinguishable” from those waters. It also says the wetlands on the Sacketts’ property are “distinguishable” from nearby wetlands that feed into the lake.
The court decision overturns a 9th Circuit Appeals Court ruling that sided with the EPA against the Sacketts. It also turns the matter back to the EPA to come up with a new rule defining waters that can be regulated. Construction groups vowed to work with the agency on any changes.
“The decision also makes clear that the Biden administration must rewrite its current proposed Waters of the U.S. rule,” Sandherr, of AGC, said. “Attempting to redefine a navigable waterway to include puddles and ditches that will never bear maritime traffic nor flow into a U.S. waterway is clearly not legal.”