ALBANY, May 26, 2023 — New York State’s top environmental regulator today condemned the U.S. Supreme Court’s ruling Thursday that will remove millions of acres of environmentally sensitive wetlands from federal regulation.
“(The) decision has the potential to gut the Clean Water Act and undermine critical protections for water quality, flood protection, critical ecosystems and habitats,” Basil Seggos, commissioner of the state Department of Conservation, said in response to a question from WaterFront.
The ruling is seen as a big win for farmers, developers and polluting industries, who will face fewer obstacles in obtaining permits. It’s a major setback for the U.S. Environmental Protection Agency and its efforts to prevent upstream waters from polluting downstream waters that often supply public drinking water.
Under the 5-4 decision written by Justice Samuel Alito, the EPA will no longer have authority over wetlands unless they have “a continuous surface connection” to what the law refers to as “waters of the United States.”
That means the wetlands “adjacent” to those major waterbodies — but not directly adjoining — will no long be protected from polluting practices.
The environmental law group Earthjustice has estimated that the new definition may prevent the EPA from protecting up to 118 million acres of wetlands, an area larger than California, the Washington Post reported.
“It’s just a terrible decision,” said Judith Enck, a former regional EPA director for New York and New Jersey.
Enck said the court’s ruling throws into legal question the future treatment of prominent Finger Lakes wetlands like Catharine Creek in Schuyler County or the Montezuma Wildlife Refuge in Seneca, Wayne and Cayuga counties.
The Community Science Institute in Ithaca noted that wetlands play a significant role in the health of local streams and lakes that the institute monitors.
“Wetlands filter pollutants, prevent flooding and provide essential habitat for a wide range of sensitive species,” CSI said in a statement to WaterFront. “Narrowing the interpretation of waters of the U.S. could have far-reaching implications for protecting the health of ecosystems.”
Rob Hayes, Director of Clean Water at Environmental Advocates of New York, called the decision “nothing short of an environmental tragedy.”
Hayes said the ruling shows “a clear disregard for decades of legal precedent…insults our shared responsibility to protect vital ecosystems and ignores the far-reaching implications of water quality and flood control.”
Hayes called for the DEC to fast-track new regulations to protect more than one million acres of wetlands across the state, as required under a landmark law enacted in the 2022 state budget.
“This is an opportunity for DEC to provide stronger regulation and clarity,” Enck added.
Seggos said the agency is “reviewing the potentially detrimental impacts of this decision on our state’s natural resources and communities.”
The case at issue involved an Idaho couple who sought to build a house on a what and appeals court called a soggy lot near Priest Lake. Reversing the appeals court, all nine justices agreed that the EPA lacked jurisdiction over the site.
But instead of limiting his opinion to that particular case, Alito opted to broaden it dramatically by redefining the meaning of the word “adjacent” in the 1972 Clean Water Act. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett signed on.
Such a redefinition had been promoted by former Justice Antonin Scalia before he died in 2016. But he lacked the votes on the court to impose his will.
Justice Brett Kavanaugh chose not to go along, as he usually does, with his conservative colleagues.
The majority’s new test, Kavanaugh wrote “departs from the statutory text, from 45 years of consistent agency practice, and from this court’s precedents.”
He cited the levee systems along the Mississippi River and projects aimed at cleaning up Chesapeake Bay as examples of sites that might suffer under the new rules.
The court’s three liberal Justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — joined Kavanaugh’s opinion.
Kagan wrote that Alito’s opinion puts “a thumb on the scale for property owners — no matter that the Clean Water Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”
Last June, a conservative Supreme Court majority took a swipe at the Clean Air Act by curtailing the EPA’s ability to restrict power plant emissions.
“The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy,” Kagan wrote this week in her opinion on the Clear Water Act case.
President Joe Biden called the ruling a disappointment that “will take our country backwards.”
We must look to the NYSDEC and the state legislature to protect the wetlands in and near the Finger Lakes.
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