Sackett v. EPA decision on Clean Water Act
On May 25th, the Supreme Court delivered a crushing blow that rolled back protections under the Clean Water Act (CWA) by severely limiting the interpretation of when wetlands will be protected and considered “waters of the United States” (WOTUS) except in extremely limited circumstances.
Justice Alito delivered the opinion for the court where he outlined the case for limiting protections and definitions for what would be considered protected under the CWA. "In sum, we hold that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.”
The CWA and the definition of WOTUS, the waters in which the act protects, has been debated and shifted back and forth for years, however, this recent ruling directly contradicts the very mandate of the act itself. The mandate of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Alito’s decision and rationale completely ignores the scientific evidence and basic understanding of how wetlands function and how we have evolved our understanding of their importance.
By hyper focusing on textualist definitions, this ruling has been estimated to strip protections of up to 50% of the wetlands that were previously protected under the CWA. While there is still much to learn as the EPA and government agencies continue to develop new policies based on the decision, it is clear that this is a major step backwards for our nation's clean water, flood mitigation, wildlife habitat, and all of the other critical functions that wetlands provide.
The case at hand, Sackett vs. EPA, has been in the courts for over a decade after Michael and Chantell Sackett purchased a lot near Priest Lake, Idaho in 2004 and began backfilling the land to prepare for construction. As this process was underway, the EPA sent the Sacketts a notice that the land on which they intended to build was protected under the CWA and they were ordered to immediately “undertake activities to restore the site.” The Sackett’s in turn sued the EPA claiming that their land was not under the jurisdiction of the CWA.
At the time, the EPA interpreted WOTUS to be defined by all navigable waterways and waters that could affect interstate or foreign commerce as well as wetlands adjacent to those waters. Under this definition, adjacent did not mean just bordering but also neighboring. For wetlands or streams that did not possess a navigable connection to clearly defined waters, the agency determined jurisdiction if a waterway had a “significant nexus” to a traditionally navigable waterway. A “significant nexus” was said to exist when “‘wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity’” of those waters.
In concurring opinions, all Justices did ultimately agree that the Sackett property did not contain wetlands that met the bar for protection. However, they starkly disagreed on how far to take this decision or to define future protections. In particular, concurring Justices emphasized that “adjacent” does not mean “adjoining” as Alito alludes in this opinion.
Justice Kagan states in their opinion that “[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” This only emphasizes the rift between Justices and that this decision has implications that were never intended for the courts to decide.
The CWA appears to be a victim of its own success and this devastating ruling highlights how easily we forget where we have come from. Before its passage, lakes and rivers burned from vast amounts of pollution, water bodies were viewed as free dumping grounds for industry, and drinking water was more vulnerable than ever.
As climate change and the water resources of our country continue to face increasing pressure, now is not the time to weaken what safeguards we have been able to enact. This ruling now shifts the attention and responsibility to Congress and state officials to act fast and ensure that our waters and wetlands are protected and to clearly define WOTUS to uphold the true intent of the CWA before we continue to see the backbone of our environmental protections further eroded.
“While today’s ruling is truly disheartening, it highlights the importance of electing candidates with an understanding of the science of ecology. Judges are only meant to interpret the intent of laws, therefore it is incumbent that our Federal delegates be literate in the ecological importance of our most precious and increasingly scarce resource – water. A clear and concise definition of “Waters of the United States,” with the broad protections that were foundationally intended by the Clean Water Act, would have rendered this lawsuit moot and saved hundreds of thousands of wetlands, and ultimately rivers, from the multitude of threats that will undoubtedly inundate them through this ruling,” said Nic Nelson, Executive Director of Idaho Rivers United.
