The act says what it says. The way the EPA was stretching the definition thin - even patches of dry ground were being considered wetlands if they determined it was an important enough part of a watershed.
The agency largely got to choose their jurisdiction arbitrarily - and because their activities happened on a federal level, there was almost no political recourse if you thought you had been wronged by the agency.
If we want EPA to have the authority to protect aquifers, it would be better to focus on fixing the language of the bill. But I think even outside of our current political climate, not even many progressive politicians are too excited to hand the power back to a federal agency that largely only pestered their constituencies.
I highly recommend you read Kavanugh's opinion; he rather elegantly lays out how it was in fact the majority that was warping the definitions laid out in the statute and departing from the text. Someone else already posted a small excerpt: https://news.ycombinator.com/item?id=37324065
The decision to reverse the 9th circuit was unanimous, but the decision to redefine 'adjacent wetlands' and restrict the EPA's authority was 5-4, with Kavanaugh rather enthusiastically joining the liberals in opposition.
Kavanaugh's point is actually pretty terse and elegant:
> The Ninth Circuit held that the wetlands on the Sacketts’ property are covered by the Clean Water Act because, as relevant here, the wetlands have a “significant nexus” to covered waters nearby. 8 F. 4th 1075, 1093 (2021). The Court today reverses the Ninth Circuit’s judgment. I agree with the Court’s reversal of the Ninth Circuit. In particular, I agree with the Court’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered under the Act. And I agree with the Court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the Act and are therefore not subject to permitting requirements.
> I write separately because I respectfully disagree with the Court’s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters. Ante, at 20, 22 (internal quotation marks omitted). In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States. Therefore, I respectfully concur only in the Court’s judgment.
The act says what it says. The way the EPA was stretching the definition thin - even patches of dry ground were being considered wetlands if they determined it was an important enough part of a watershed.
The agency largely got to choose their jurisdiction arbitrarily - and because their activities happened on a federal level, there was almost no political recourse if you thought you had been wronged by the agency.
If we want EPA to have the authority to protect aquifers, it would be better to focus on fixing the language of the bill. But I think even outside of our current political climate, not even many progressive politicians are too excited to hand the power back to a federal agency that largely only pestered their constituencies.