In a Twitter feed, Jonathan Wood of PERC untangles the confusion over the Supreme Court’s May 25 decision regarding the definition of the “waters of the United States” (WOTUS). The entire Supreme Court reined in the EPA. A majority (5) did so more boldly than the rest (4).
From Wood’s Twitter thread:
“So why was the judgment 9-0 but only 5 justices joined the opinion for court? The justices disagreed about whether the Clean Water Act should apply to a narrow class of wetlands separated from oceans, lakes, rivers, and streams only by a berm, levee, or similar feature.
“Justice Alito’s opinion for the court interpreted the Clean Water Act to apply only to 1) relatively permanent or flowing water bodies like lakes, rivers, and streams and 2) wetlands abutting those water bodies such that you can’t tell where the river ends and the wetland begins.
“Justice Kavanaugh, joined by Kagan, Sotomayor, and Jackson, would have added to this wetlands that are next to relatively permanent or flowing water bodies but separated by a berm, levee, sand dune, or similar man-made feature.
“That’s it. No justice advocated an interpretation that would include the sort of ephemeral water bodies or more distant wetlands that have generated most of the conflict under the Clean Water Act.”
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