The Supreme Court significantly altered protection for the nation’s wetlands and waters in May during its ruling for Sackett v. EPA.
Michael and Chantell Sackett bought land for construction near Priest Lake in Idaho in 2007. They received a notice from the EPA to halt construction because their lot has wetlands protected by the Clear Waters Act, which bans the discharge of pollutants into “navigable waters.” The CWA defines navigable waters as “waters of the U.S.” The wetlands on the Sacketts’ property feed into a non-navigable creek leading to Priest Lake.
The U.S. Court of Appeals for the 9th Circuit applied Justice Anthony Kennedy’s test outline in Rapanos v. U.S. The outline looks at if there is a “significant nexus” between wetlands and waters covered by the CWA and if the wetlands “significantly alter” the quality of the waters. In May, the Supreme Court reversed the ruling of the 9th Circuit. Justice Samuel Alito stated that courts should apply a test that the CWA applies to a wetland if it flows or blends into neighboring water that is a channel for interstate commerce.
A Victory or a Disaster?
Some see the ruling in a positive light. Damien Schiff, a senior attorney at Pacific Legal Foundation who argued the case, sees the Supreme Court’s decision as returning “ the scope of the Clean Water Act to its original and proper limits.” The ruling is a “profound win for property rights and the constitutional separation of powers,” according to him.
U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, agrees with Schiff. The Court’s rejection of the “significant nexus” test protects “America’s farmers, ranchers, builders, and landowners from overreach under the Clean Water Act,” according to him.
Others see the ruling as disastrous for the nation’s waters. The Whitehouse stated that the ruling “upends the legal framework that has protected America’s waters for decades.” U.S. Senator Tom Carper (D-Del.), Chairman of the Senate Environment and Public Works Committee, concurs with the Biden Administration. He thinks the “Supreme Court has turned back the clock on critical clean water protections, changed the decades-long understanding of the law, and put America’s remaining wetlands in jeopardy.”
Consequences of Sackett v. EPA
The Court’s decision has significant consequences for the nation’s freshwater wetlands, many of which will not be under the CWA permitting and protection. Those wetlands will only be protected from pollutants if state laws impose regulations. The Environmental Law Institute found that 24 states rely on the CWA to protect wetlands, while 19 states have laws protecting many of these watts, and seven others have laws protecting some of the waters.
How this plays out across the country will vary according to the state. In California, wetlands will remain protected under state law. California regulates wetland development under the Porter-Cologne Act, which regulates discharges into “waters of the state.” California broadly defines these waters, and wetlands remain protected in the state. However, in states lacking protection, wetlands are now up for development. Any pollutant discharge from development can end up in waters such as Priest Lake, as Idaho is one of the states that relied on federal protection for wetlands.
