By: Will Matushek

On May 25, 2023, the Supreme Court decision in Sackett v. EPA overturned over 50 years of precedent by holding that wetlands do not fall within the protection of the Clean Water Act (“CWA”). The case started in 2007 when Sackett, a new homeowner in Idaho, applied for building permits on his property. However, the Environmental Protection Agency (“EPA”) later informed him that his property contained protected wetlands and his construction violated the CWA. The CWA prohibits the discharging of pollutants into “the waters of the United States.” The interpretation of what falls within “the waters of the United States” has been quite broad historically, as the drafters of the act wanted as many water sources as possible to fall within the protections of the CWA.

In Sackett, Justice Alito wrote for the majority and held that the CWA’s use of “waters” in § 1362(7) of the CWA refers only to “geographical features that are described in ordinary parlance as streams, oceans, rivers and lake” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. The Court declared that the uncertain meaning of “the waters of the United States” has been a persistent problem with the CWA and delivered a narrow interpretation that views wetlands as protected within the CWA as a “practical matter indistinguishable from the waters of the United States.”

Prior Interpretation of Waters of the United States

As stated in Sackett, the meaning of “waters of the United States” has been the source of great debate over how the CWA can be used to protect waters from discharged pollutants. The leading authority on how wetlands fall within the CWA before Sackett was the 2006 case of Rapanos v. United States where the Court was unable to reach a majority opinion on the issue. Rapanos involved a similar fact pattern to Sackett where a property owner was trying to develop land that was considered a protected wetland under the CWA. Justice Scalia authored a plurality opinion, joined by Chief Justice Roberts and Justices Thomas and Alito, where he relied on the Webster’s dictionary definition of waters and he argued that WOTUS should include only relatively permanent, standing, or continuously flowing bodies of water. Additionally, he asserted that the CWA confers federal jurisdiction over non-navigable waters only if the waters exhibit a relatively permanent flow, such as a river, lake, or stream. The dissent was authored by Justice Stevens, and he was joined by Justice Ginsberg, Breyer, and Souter. Stevens argued that common sense and common usage treat intermittent streams as streams.

The key opinion in this case was from Justice Kennedy who wrote a concurring opinion agreeing with Scalia that the case should be vacated and remanded, but he did not agree with his interpretation of what constitutes navigable water. Kennedy argued that a wetland or non-navigable waterbody falls within the scope of the CWA’s jurisdiction if it bears a “significant nexus” to a traditional navigable waterway. The dissenting justices also agreed with this interpretation, with Stevens assuming that Kennedy’s approach to this issue would be controlling in most cases moving forward.

Since there has been no clear agreement on whether wetlands fall within the CWA, it is apparent how impactful the holding in Sackett is. Justice Alito’s opinion has left it to the States to decide what to do with their wetlands and according to Earthjustice, a nonprofit public-interest environmental law organization, there are now 59 million acres of wetlands left unprotected by federal law in the United States.

States Response and Sackett’s Long-term Impact on the CWA

Justice Alito fails to account for the fact that not all parts of the country have the typical precipitation patterns of the East Coast where streams flow consistently year-round. The impact on these streams will be similar to what happens to wetlands as they are no longer protected under the CWA. It will be up to the States now to individually decide how they want to treat their water resources that the EPA no longer has any authority over. For example, in states like California, there will likely not be much change because of the political climate of the State and its emphasis on environmental protection. However, for a state like Florida which has vast swaths of wetlands, this could create an economic boom of development. With the permitting process no longer being a requirement for the filling and dredging of wetlands, economic development can happen faster and in places where it has been constrained in the past. The downside to this new freedom is that the Army Corp will no longer be around to survey the possible damages to the environment and more importantly the degradation of water quality.

After the holding in Sackett was filed, seventeen States along with the District of Columbia filed an Amicus Brief advocating against the majority decision. The states asserted that each of the forty-eight contiguous States contain waters that are downstream from other States and thus rely on CWA’s federal standards to protect their waters from pollutants. For example, the Mississippi River flows through nine states before reaching the Gulf of Mexico. If each State has a different standard when it comes to water pollution control, specifically wetlands protections, it could severely harm the states that are furthest downstream. Arkansas could create some of the most comprehensive Clean Water laws in the county, but that could all be effectively useless if Illinois does not have similar standards. The waters of the United States are intertwined and not defined by manmade borders. Not having an established federal standard will only lead to conflicting regulations and polluted water. This is especially so when each state’s water pollution policies are largely determined by the political position of that State.

The Environmental Value of Wetlands

The EPA has noted, “By nearly every metric it pays to save wetlands”. For hundreds of years, the public has viewed wetlands as a nuisance. The goal historically was to drain as much as possible so that the land could be developed to provide some form of economic benefit. Over 200 years between 1780 and 1980, the United States had developed an estimated 53 percent of its wetlands. To put it into perspective, that is 60 acres of wetlands destroyed every hour for 200 hundred years straight. It is a staggering amount of destruction for a natural resource that has countless benefits. Wetlands have some of the most biologically diverse ecosystems in the world, only being rivaled by coral reefs and tropical rainforests. More than a third of endangered species on Earth call wetlands home and even more use them to reproduce.

Another important role of wetlands is its role in the hydrologic and carbon cycles. The thick vegetation of wetlands acts as water purifiers that naturally remove pollution and impurities. It has also been noted that wetlands can help prevent and subdue flooding caused by extreme weather. By being able to absorb and store large amounts of flood waters wetlands act as natural buffers to adjacent communities and slowly release the excess water after a storm has passed. Studies after Hurricane Katrina found that if the wetlands in the Mississippi Delta were better maintained then it could have reduced the massive amounts of flooding that occurred. As climate change only increases the probability of massive storms like Katarina, natural protection like wetlands is going to become more essential in the future. Additionally, wetlands can transform excess pollutants such as nitrates leaking from septic systems and agricultural fields into harmless gases through the natural process of denitrification. The natural flood management and pollution control qualities that wetlands offer are truly invaluable to our society.

Along with their hydrological impact, wetlands also act as massive carbon sinks. A carbon sink is anything that absorbs more carbon from the atmosphere than it releases. Wetlands are more efficient at storing carbon than forests because they can exist unchanged for hundreds or even thousands of years. They have a remarkable capacity to sequester carbon, as they contain 20% to 30% of the global soil carbon despite only making up 5% to 8% of the total land surface. This ability will only become more valuable in the future as we try to mitigate the effects of climate change as efficiently and quickly as possible.

Wetlands act as natural sponges and when they are removed from the landscape, we lose a vital reservoir for excess floodwater. Throughout history, there are numerous examples of the development of wetlands leading to significant issues in flooding. For example, the Metropolitan Water Reclamation District of Greater Chicago has spent over $3 billion since the mid-1970s to build a vast system of underground tunnels and reservoirs designed to reduce flooding and protect Lake Michigan from pollution and sewage runoff. Ironically the reason the city has had to invest so thoroughly in these water management infrastructure projects is because Chicago is built on top of what once was a wetland which would have naturally reduced flooding and filter pollutants. If the city had had the foresight to not develop its wetlands, then it could have saved billions of dollars that could have been invested elsewhere.

Wetland regulation is a complex subject throughout the United States as its benefits are not widely understood. Much of the country is focused on the short-term economic benefits that the development of wetlands may offer. However, this shortsightedness will only harm our nation in the long term. The flood prevention, water security, and water purification properties provided by wetlands are invaluable to the environmental health of our nation.

References:
1. Sackett v. EPA, 598 S. Ct. 21-454 (2023)
2. Rapanos v. United States, 547 U. S. 715 (2006) (plurality opinion).
3. Greene, Duncan M.; Amberson, Sophia E.; Quihuis, Liberty; Knight, April; Gray Sommerville, Savian, “U.S. Supreme Court Narrows WOTUS, Limiting Scope of Clean Water Act”, NATIONAL LAW REVIEW (June 15, 2023), https://www.natlawreview.com/article/us-supreme-court-narrows-wotus-limiting-scope-clean-water-act
4. See Jeff Turrentine, “What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways” NATURAL RESOURCE DEFENSE COUNCIL (June 5, 2023), https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa [https://perma.cc/77K2-AXSZ].
5. See Supreme Court Catastrophically Undermines Clean Water Protections, EARTHJUSTICE (May 25, 2023) https://earthjustice.org/brief/2023/supreme-court-sacket-clean-water-act [https://perma.cc/H349-LDGU].
6. Sheila M. Olmstead, Matt Fleck, The Future of the Waters of the United States after Sackett v. US Environmental Protection Agency, RESOURCES FOR THE FUTURE (August 18, 2023) https://www.resources.org/common-resources/the-future-of-the-waters-of-the-united-states-after-sackett-v-us-environmental-protection-agency/ [https://perma.cc/MLK5-E22H].
7. Brief For States of New York, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Washington, and Wisconsin, and the District of Columbia as Amici Curie in Support of Respondents at 2, Sackett v. EPA, (No. 21-454).
8. See Mark Squillace, From “Navigable Waters” to “Constitutional Waters”: The Future of Federal Wetlands Regulations, U MICH J. L. REFORM 799 (2007) https://repository.law.umich.edu/mjlr/vol40/iss4/4.
9. Environmental Protection Agency, Marshes, http://www.epa.gov/owow/wetlands/types/marsh.html#tidal [https://perma.cc/V498-WK4Z].
10. What is a carbon sink? CLIENTEARTH, https://www.clientearth.org/latest/latest-updates/stories/what-is-a-carbon-sink/#:~:text=A%20carbon%20sink%20is%20anything,fossil%20fuels%20or%20volcanic%20eruptions [https://perma.cc/6ZLH-UGHH].
11. See Karina Atkins, “Illinois environmentalists point to the crucial role of wetlands in Supreme Court case that pits ecology against property rights”, CHICAGO TRIBUNE (May 10, 2023) https://www.chicagotribune.com/news/environment/ct-wetlands-supreme-court-marian-byrnes-20230510-tm7y2x7cpfeq3lbvhubwgsnjve-story.html [https://perma.cc/CC87-3BKY].