ICSC Applauds U.S. Supreme Court Decision to Limit Federal Overreach in Sackett v. EPA

In Sackett v. EPA, the U.S. Supreme Court on Thursday handed down a decision that will narrow the reach of federal clean water regulations. In reaching its broader legal conclusion, all nine Supreme Court Justices agreed to reverse the U.S. Court of Appeals 9th Circuit decision, thus reaffirming the Clean Water Act extends only to wetlands that have a continuous surface connection with “Waters of the United States” (WOTUS). 

The lack of clarity surrounding the question of which waters constitute a WOTUS has harmed the ability to grow economic development in communities and create jobs in the Marketplaces Industry, affecting project scheduling, timing and costs associated with developing or redeveloping properties.

The Court’s majority opinion, authored by Justice Samuel Alito, argues that Clean Water Act jurisdiction extends only to wetlands that are “indistinguishable” from larger bodies of water by having a “continuous surface connection.”  Alito wrote that a narrowing of the current rule is necessary to avoid “criminalizing mundane activities like moving dirt.” 

For decades, ICSC has advocated for a common sense approach to WOTUS, and supports balancing the needs of our nation’s precious environment while continuing to promote its economic recovery. The Supreme Court’s decision will provide more clarity for property developers, owners, and tenants, as the ruling will alleviate some of the burdens caused by this rule on the regular course of business.