On May 25, the United States Supreme Court handed down a ruling in Sackett v. EPA that strips Clean Water Act (CWA) protections from wetlands that do not have a “continuous surface connection” with adjacent water bodies.
In a two-part decision that will guide the future of wetland policy, the court ruled unanimously in favor of Michael and Chantell Sackett, who backfilled a soggy marsh on their Idaho property near Priest Lake in 2004. However, the court was split 5-4 on determining the type of wetlands that should fall under federal regulatory jurisdiction.
The majority opinion of the court, penned by Justice Samuel Alito, is one of the narrowest interpretations of the CWA to date, and one that restricts the Environmental Protection Agency’s (EPA) ability to protect wetlands and ephemeral headwater streams. It’s a decision that has enraged hunting and angling advocacy groups, and rightfully so.
“This ruling from the Supreme Court is a gut punch to fish and wildlife and the American people who just lost clean water protections for most wetlands across the country,” Backcountry Hunters & Anglers Vice President of Policy and Public Relations John Gale said. “Instead of seizing the opportunity to secure greater certainty for wetland systems…the court has ensured future litigation and greater vulnerability for migratory birds, coldwater fisheries and millions of people who want cleaner, safer drinking water.”
The Theodore Roosevelt Conservation Partnership responded similarly, writing, “As every hunter and angler knows, wetlands are incredibly important whether they are connected by surface flow to a stream or not. The court’s ruling will be bad for the environment and for hunting and fishing.”
Both these organizations, along with a handful of other public-resource conservation groups filed an amicus brief—a statement from ancillary parties—in the Sackett case, citing examples of critical fish and wildlife habitat that would lose protection. Among them are: the prairie pothole region of the Midwest, intermittently-flowing creeks in the desert southwest and Rocky Mountains, and disjointed wetlands at the headwater tributaries of nearly every major stream in the country.
The court’s decision has a significant bearing going forward, but understanding it takes a little background.
At a fundamental level, the Sackett case boiled down to a matter of definitions and jurisdictions. In the case, the court defined what type of wetlands are considered waters of the United States (WOTUS), and therefore are under federal jurisdiction—a concept first laid out in the Clean Water Act of 1972.
The Act gave the EPA (and in some cases the U.S. Army Corps of Engineers), authority to regulate pollutant discharge into “navigable waters of the United States,” further defined as the “waters of the United States including the territorial seas.” A remarkably broad definition, lending itself to a logical follow-up question: what classifies such waters?
Ironically, the definition is about as murky as they come—but it’s not something to be taken lightly. The scope of WOTUS determines the reach of the EPA.
Both the judicial and executive branches of the federal government have weighed in. On the judicial side, a 2006 Supreme Court case (Rapanos v. United States) attempted to clarify the EPA’s role as it relates to wetlands. The court split 4-1-4. On one side, Justice Antonin Scalia stated that wetlands should only be considered WOTUS if they have “a continuous surface connection” to a navigable waterway.
In a concurring but separate opinion, Justice Anthony Kennedy wrote that Scalia’s interpretation of WOTUS was “without support in the language and purposes of the (CWA).” Kennedy continued, referencing a 1985 court precedent and positing that for a wetland to constitute a “navigable water,” it must have a “significant nexus to waters that are or were navigable.” Finally, echoing the language of the CWA itself, his opinion broadly defined “nexus” to mean a swath of wetland that significantly affects the “chemical, physical, and biological integrity” of other, indisputably-navigable waters.
Kennedy’s opinion became the working definition, but it took executive sway under the Obama administration for it to be codified by the EPA in 2015. The code has since withstood numerous assaults. In 2017, Trump signed an executive order aimed at rolling back the CWA to apply only to clearly-navigable waters with surficial connections. But regulatory rulemaking takes time, and Trump’s rollback attempt was truncated by the end of his term in office.
Then, under the Biden administration in 2020, the EPA issued its Navigable Waters Protection Rule, reinstating protection to wetlands with a “significant nexus.” The rule was again updated in January 2023.
The Sackett case asked the courts to decide once-and-for-all how and when wetlands should be considered WOTUS— the Scalia “test” or the Kennedy “test.” The court sided with Scalia, which for hunters and anglers, is not a good ruling.
In the final opinion, the court wrote that the CWA “extends to only wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” and that said wetlands must have “a continuous surface connection” with that water. Exactly how many square miles of wetlands and unconnected or ephemeral tributary creeks will be excluded from protection is difficult to nail down, but according to BHA’s brief, it’s a lot.
The effects are likely to be two-fold. On a large scale, big swaths of land in water-rich areas like the prairie pothole country of North and South Dakota, the Alaskan tundra, or the Chesapeake Bay are likely no longer federally protected by the CWA’s pollution regulations. These areas could still be protected by state regulations, but in most cases, they’re much weaker than federal protections.
More concerning, however, are the smaller-scale impacts. As the old adage goes: “Watch your pennies and your dollars will take care of themselves.” Well, the same could be said for aquatic ecosystems. Damaging a couple of wetlands won’t have a drastic effect, but the cumulative sum of losses adds up to something significant—and quickly, too.
In Virginia, for example, the EPA estimates that 59 percent of linear stream miles in the state are either intermittent or ephemeral. Stripping protections from that large an area could be a dangerous blow to waterfowl, fish, and wildlife that rely on pristine headwater streams.
But the effects go beyond what we can see on the surface. It's well-known that groundwater transports pollutants, sometimes for miles, even in the absence of surface flow. Easing restrictions on wetland pollution could have unintended (but easily-foreseen) consequences further downstream. If it seems like that fundamentally negates the purpose of the CWA, but apparently the supreme court begs to differ.
Since the ruling was handed down, the EPA has stated that it will revise its January rule notice, and “interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” The imminent loss of wetland habitat is a very real prospect.
At a practical level, the ruling means property owners or developers can now backfill areas of disjointed standing water, as the Sacketts did on their Idaho property, without worrying about CWA compliance. Even if said waters function as wetlands, they will no longer be considered “waters of the United States” if not connected by surface flow to larger bodies.
Moving forward, the only way to reverse the court’s decision would be for Congress to unequivocally clarify WOTUS and its intent with the CWA. Some organizations have called for the legislative branch to take action. “It is past time for Congress to specifically address the issue by defining the scope of the Clean Water Act in a way that protects the environment, provides certainty for landowners and industry, and sustains our sports,” the Theodore Roosevelt Conservation Partnership wrote in a press release.
It’s unlikely that Congress will do so, however. They’ve had time to clear the murky waters, yet have taken no action. And now that the highest court in the United States has issued a ruling, their decision is likely to stand its ground for some time to come.