Colorado officials have published statements following a U.S. Supreme Court decision narrowing the definition of wetlands under the Clean Water Act.
On May 25, a five-justice majority of the U.S. Supreme Court sided with an Idaho couple who have been embroiled in a legal battle with the Environmental Protection Agency since 2007 when they began construction on property the EPA designated wetlands.
Since the ruling, Gov. Jared Polis and Colorado Attorney General Phil Weiser have released public statements criticizing the decision and its potential impacts on Colorado water resources.
Michael Sacket and Chantell Sacket bought property near Priest Lake Idaho, on the northern border of Washington. The couple planned to build a house and began backfilling the lot, which is near a ditch that feeds into a stream that feeds into Priest Lake. The EPA ordered the couple to stop construction and informed them that the site was considered wetlands and they were in violation of the Clean Water Act. The Sackets were ordered to restore the site or face penalties up to $40,000 per day.
The couple sued and argued their property didn’t fall under CWA’s definition of “waters of the United States.” But a federal district court and the 9th Circuit Court of Appeals ruled in EPA’s favor, with the 9th Circuit relying on former Justice Anthony Kennedy’s concurring opinion in the 2006 Supreme Court ruling Rapanos v. United States that held a “significant nexus” test to traditional navigable waters should be used to determine if wetlands are in the jurisdiction of CWA.
On appeal to the U.S. Supreme Court, the Sackets asked the court to revisit Rapanos and adopt a test put forth by Justice Antonin Scalia and Rapanos’ dissenting justices that wetlands are only covered if they have a continuous surface water connection to regulated waters.
The U.S. Supreme Court agreed with the couple and overturned the 9th Circuit’s holding, adopting the Scalia-dissent’s test for defining “waters of the United States” under CWA. The majority opinion, written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, explained that to enforce jurisdiction over wetlands, EPA or other federal agencies must first find the area is adjacent to waters of the U.S. and then also “that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
The majority explained that if it were to uphold the “significant nexus” test, a number of property owners could be criminally or civilly liable. “By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt,” wrote the majority.
Thomas wrote a special concurrence joined by Gorsuch to “to pick up where the Court leaves off” and offer additional clarity around how other CWA jurisdictional terms besides “waters” should be interpreted. He wrote that Congress limited CWA to those bodies of water that can be used for interstate commercial navigation and federal agencies like EPA “must respect that decision.”
The remaining justices dissented from the majority’s new test. While concurring with the court’s decision to overrule the 9th Circuit, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, wrote that if CWA applies to wetlands adjacent to protected waters, it should also apply to other adjacent waters. “One thing is adjacent to another not only when it is touching, but also when it is nearby,” wrote Kagan.
Kagan criticized the majority’s opinion as an overreach of the court’s power.
“So the majority shelves the usual rules of interpretation—reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges’ policy preferences,” wrote Kagan, who characterized the opinion and an opinion from last term as the court placing its thumb on the scales of justice. “The vice in both instances is the same: the Court’s appointment of itself as the national decision maker on environmental policy.”
Justice Brett Kavanaugh also wrote a separate opinion concurring in judgment only. He was joined by Kagan, Sotomayor and Jackson. He wrote that while he agreed with overruling the 9th Circuit, declining to adopt the “significant nexus” test and finding the property isn’t covered by CWA, he disagreed with the majority’s new test.
“In my view, the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice and from this Court’s precedents,” wrote Kavanaugh. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
Since the opinion was handed down this morning, Colorado’s elected officials have sounded the alarm on its potential impacts.
In a statement, Weiser wrote that many bodies of water in Colorado don’t have a consistent flow of water and therefore aren’t covered by CWA or federal regulators after the court’s latest interpretation.
“In practice, this means that Colorado will have to step in to address the impacts of dredge and fill activities that have historically been overseen by the U.S. Army Corps of Engineers,” wrote Weiser. He added that as a headwater for the Colorado River, the state has an interest and obligation to make sure pollution doesn’t impact Colorado and downstream state’s economy, industry and people. “We in Colorado must find a way forward to protect waters within our borders and provide regulatory certainty for all of us in our state who depend on clean water,” added Weiser.
Polis also issued a statement in conjunction with the Colorado Department of Health and Environment.
“In Colorado, we know the importance of protecting our clean water resources for the health and safety of Coloradans, wildlife and our thriving economy. My administration is deeply disappointed in this Court which has once again sided with special interests and polluters, by severely lessening protections for drinking water, wetlands and tributaries,” wrote Polis.
According to the release, the state was prepared for a ruling that could walk back CWA scope and has taken steps to create state-level protections for bodies of water. CDPHE executive director Jill Hunsaker Ryan wrote the organization has already drafted policy in anticipation of the decision and plans to implement protections.
“In Colorado, we are determined to protect the waters we all cherish and rely upon. We need clarity and stability in the rules so that we can responsibly grow, while also protecting our natural resources. We have been planning for this decision and have already developed a draft policy with partners from throughout the state. This will help ensure we continue to protect Colorado waters while moving toward a long-term, durable solution,” wrote Hunsaker Ryan.