Wetlands Protection Under Attack as a Result of New Supreme Court Decision

Environment Policy Brief #155 | By: Todd J. Broadman | June 14, 2023

Photo taken from: reuters.com

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SCOTUS has been taking up cases that concern the scope of EPA (as well as other agencies’) authority. The Court’s ruling on a recent case – Sackett vs. EPA – will have environmental protection implications for decades to come. This case centers around the Clean Water Act (CWA), legislation passed in 1972.

Back in 2004, Chantell and Michael Sackett purchased two-thirds of an acre of property in rural Idaho, situated about 500 feet from the shores of Priest Lake, for $23,000 with the intent of building their vacation home. Shortly after they began preparing the ground for construction in 2007, a neighbor filed a complaint with the EPA who soon after issued an order to the Sacketts to stop work immediately – the order read that their land was federally protected wetland. Further, they were instructed to remove the gravel that had been poured onto the lot. The Sackett’s initial law suit was filed in 2008, and has been winding its way through the court system for the last 14 years. SCOTUS unanimously affirmed in 2012 that the Sacketts could challenge the law – central to the litigation was whether or not their property can be defined as Waters of the United States (WOTUS).

WOTUS are bodies of water that are “navigable.” And therefore, the EPA is charged with regulating pollutants that may run into “navigable waters.” Even though the Sackett’s property did not have a “continuous surface connection” to “navigable waters,” the EPA argued they had jurisdiction because their property has an “indirect” subsurface connection to Priest Lake. Before SCOTUS heard the case, the Ninth Circuit Court of Appeals agreed with the EPA and the definitions as laid out in the CWA.

In a 9-0 decision, SCOTUS unanimously reversed the Ninth Circuit’s decision. In the majority opinion, the Sackett’s property is not to be considered WOTUS under CWA; the implications are far reaching. Although the decision in favor of the Sacketts was unanimous, there was a sharp divide in the opinions issued by the Justices.

Justice Samuel Alito, writing for the majority, further narrowed the definition of the term “waters of the United States” (WOTUS) as “relatively permanent, standing or continuously flowing bodies of water” such as “streams, oceans, rivers, and lakes.” By this definition, most U.S. wetlands are not considered WOTUS and thus not under EPA authority. There is an exception if the wetland in question has a “continuous surface connection” to WOTUS. Because the Sacketts’ land does not have a “continuous surface connection,” their property is not part of WOTUS.

According to Jon Devine, the director of NRDC’s federal water policy team, the original legislation was not intended to provide, as Justice Alito argued, a narrow definition of WOTUS. To the contrary, Devine contends that WOTUS be made up of “all the relevant parts of an aquatic ecosystem, including streams, wetlands, and small ponds—things that aren’t necessarily connected to the tributary system on the surface, but that still bear all kinds of ecological relationships to that system and to one another.”

In 2006, a similar case came before the Court – Rapanos v. U.S. In that case, Judge Scalia applied the term “navigable” as well as “continuous surface connection” to waters that come under the CWA, while Justice Kennedy maintained a broader definition: “wetland that shares a significant nexus with another, adjacent body of water that is already protected.” The inference is that if the wetland is subject to pollution so will the nearby water. Judge Alito and others on the majority saw it similar to Scalia though, stating that the EPA’s broader definition leads to “serious vagueness concerns.” The narrower definition, according to Earthjustice, could open up for development 60 million acres of U.S. wetlands.

Analysis

Some environmental law experts see Sackett as the most significant water-related Supreme Court decision in a generation. There is a clear trend: the Court wants to pull back and further limit Agency authority from broadly interpreting written statutes. This was evident in the U.S. v. West Virginia case. This ruling will even open up to scrutiny wetlands and other bodies of water currently under EPA regulation. “The notion that the law can’t protect a body of water, simply because there’s a road between it and another body of water that’s unquestionably protected, is absurd and unscientific,” echoes NRDC’s Jon Devine. 

Interestingly, Justice Brett Kavanaugh, in his minority opinion, supports Devine’s same view – that “it would defeat the purpose of the Clean Water Act” and that “the Court’s rewriting of adjacent to mean adjoining” defeats what was originally intended as environmental protection in the CWA. Justice Kagan is in agreement here with Kavanaugh when she writes that “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.” They concur with experts in the field of water ecology who see “grave consequences for the protection of the nation’s freshwater resources.” A victory for big monied industry lobbyists who would err on the side of throwing caution to the wind when it comes to wetlands development.

Moving forward, the EPA will have no authority to regulate wetlands unless and until they can show that the water in question is “navigable” and “adjoins” a body of water that falls under the CWA with a “continuous surface connection.” States and municipalities have already begun to amend their rules in response to the Sackett decision. Although individuals such as the Sacketts would not have posed a pollution threat, larger industrial scale polluters will seize upon this ruling to develop and spoil land that would otherwise have been protected.

Engagement Resources

• https://earthjustice.org/  serves more than a thousand public-interest clients, providing top-tier legal representation in their fight for environmental justice.
• https://www.eli.org/ fosters innovative, just, and practical law and policy solutions to enable leaders across borders and sectors to make environmental, economic, and social progress.
• https://pacificlegal.org/ a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.
• https://americanagnetwork.com/ provides daily news, market and ag weather content to affiliate radio stations and listeners across much of the Upper Midwest.