A U.S. Supreme Court decision on Thursday will further limit the regulatory reach of the U.S. Environmental Protection Agency (EPA) by implementing a strict new test for the declaration of wetlands protected under the Clean Water Act (CWA).
The case involved a couple, Chantell and Michael Sacket, who had purchased property in Idaho with plans to build a home there. When they began to refill an excavated hole on their land with dirt in preparation to build their home, they were told by the EPA that backfilling their lot was prohibited under the CWA because the property contained wetlands.
At dispute was the extent to which a property needs to be connected with a U.S. waterway in order to require a permit under the CWA.
The EPA ordered the couple to restore their property in order to avoid any discharging of pollutants into “the waters of the United States.”
The Sacketts petitioned, saying their property, which was near a ditch feeding into a creek that flowed into the “navigable, intrastate” Priest Lake, did not fit the criteria of “waters of the United States.”
After the federal district court and the Ninth Circuit Court of Appeals found for the EPA, the Supreme Court’s ruling narrowed the categorization of wetlands as “waters of the United States,” thus limiting their jurisdiction under the CWA.
“In sum, we hold that the (Clean Water Act) extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” Alito wrote in the ruling. “The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”
The ruling will result in the removal of protections from nearly 90 million acres of the country’s sensitive wetlands ecosystems, which improve water quality, help keep coastal erosion in check and offer vital flood protection and carbon storage, reported Reuters.
“The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards. It puts our Nation’s wetlands – rivers, streams, lakes, and ponds connected to them – at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on,” President Biden said in a statement, according to a press release from The White House.
Though the Supreme Court ruled 9-0 in favor of the couple, four of the justices — the three liberal members of the court and conservative justice Brett Kavanaugh — disagreed with the Court’s new “continuous surface connection” test to determine if wetlands qualify as “waters of the United States,” saying it could threaten flood control and water quality in the country, Reuters reported.
Biden said the ruling overturns decades of regulations used to keep U.S. waters healthy.
“Today’s decision upends the legal framework that has protected America’s waters for decades. It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities,” Biden said in the press release.
The Supreme Court ruling was the most recent example of the Court ruling in favor of a challenge to limit the ability of the EPA to implement environmental protections, reported Reuters. In June of 2022, the Court limited the EPA’s ability to regulate greenhouse gas emissions from existing gas and coal plants under the Clean Air Act.
The CWA prohibits the discharge of pollutants — including sand and rocks — into the “waters of the United States,” which encompasses marshes, swamps, berms and other types of wetlands adjacent to navigable waters.
“Since the Clean Water Act was passed by an overwhelming bipartisan majority in Congress in 1972, it has been used by Republican and Democratic administrations alike to help ensure Americans in every state have clean water. It is the reason why today America’s lakes are swimmable, why we can fish in our streams and rivers, and why clean water comes out of our taps,” Biden said in the press release.
Nonprofit environmental advocacy group Earthjustice said half of wetlands in the contiguous U.S. will lose their CWA protections as a result of the ruling, The Guardian reported.
The decision of the Court “undoes a half-century of progress generated by the Clean Water Act,” Earthjustice said, as reported by Reuters.
Director of Legal Advocacy for the National Wildlife Federation Jim Murphy also expressed disappointment with the ruling.
“The court’s ruling removes these vital protections from important streams and wetlands in every state. We call on both Congress and state governments to step in, plug the gap, and protect our threatened waters and the people that depend on them,” Murphy said, as The Guardian reported.
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