SANTA FE, N.M. (KRQE) – The U.S. Supreme Court recently issued a decision that could impact how much power the U.S. Environmental Protection Agency (EPA) has to keep the nation’s waters clean. And New Mexico’s leading environmental official is calling the decision “appalling.”
Defining federally regulated water
Thursday, the Supreme Court decided that the legal definition of “the waters of the United States” does not include as many bodies of water as previously thought. In essence, the justices decided that a body of water isn’t necessarily subject to federal regulation just because it is adjacent to other protected water and shares some sort of common “nexus.”
According to the Supreme Court decision, “by the EPA’s own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation” under the previous definition. Now, some advocates say the changed definition leaves the EPA with significantly less power to ensure that the environment stays clean.
“The U.S. Supreme Court’s decision amounts to cultural appropriation for New Mexico’s residents and tribal members, stripping us of our connections to our most precious natural resource. This comes at a time when climate change demands even greater protections of ephemeral streams, wetlands and groundwater,” New Mexico Environment Cabinet Secretary James Kenney said in a press release. “While this decision is devastating to water-starved western states, we will not be deterred from our mission to protect water for current and future generations.”
Background on the Supreme Court case
The legal case dates back almost two decades. In 2004, Michael and Chantell Sackett bought land in Idaho. In the process of building a home, they ran into issues with the EPA, who claimed they were contaminating protected wetlands.
After an extensive legal battle, the dispute made it to the Supreme Court. The Court’s decisions ultimately decide exactly how federal law should be interpreted.
Explaining the decision
The Supreme Court explains in its decision that the previous definition of “waters of the United States” was broad and “puts many property owners in a precarious position,” because it can be hard for a private property owner to know whether water on their property is theirs or the U.S.’s.
In some cases, the Supreme Court explains, even land that seems to be dry might count as a “wetland” subject to federal regulations.
The fact that deciding which areas are federally regulated can be challenging, combined with the fact that even seemingly “mundane activities like moving dirt” (which is what sparked the original dispute) can lead to criminal penalties, means that a “staggering array of landowners” could face criminal sanctions under the previous definition, the justices explain. So, they say wetlands are not part of protected water simply because they are located near protected water. Instead, the wetlands must be indistinguishable from the protected water in order to receive the same protection.