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Clean Water Act Decision Signals Sharp Regulatory Restraint

June 02, 2023

Last Thursday, the US Supreme Court once again reduced the Environmental Protection Agency’s powers to issue regulations under environmental laws, in this case the Clean Water Act. The Court ruled 5-4 that EPA had exceeded its powers to determine the meaning of the phrase “waters of the United States” in attempting to count most wetlands under that definition.

  • The Court overturned an earlier decision stating that wetlands could be regulated if they have a “significant nexus” to waters such as rivers and lakes that clearly fall under the Act.
  • Under the Court’s new standard, the Clean Water Act will apply only to wetlands with a “continuous surface connection” to regulated waters so as to be “as a practical matter indistinguishable” from them.
  • This case, along with last year’s decision in West Virginia v. EPA, could be a harbinger of a broader effort to restrict how agencies interpret Federal statutes.

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Authors

Dr. Lori Esposito Murray

Dr. Lori Esposito Murray

Senior Fellow for National Security & Managing Director of CEO Programs

Read BioDr. Lori Esposito Murray

John Gardner

John Gardner

Vice President, Public Policy

Read BioJohn Gardner

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