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The majority of the nation’s wetlands where many birds raise their young, congregate in winter, and rest during migration—and which filter out pollutants and buffer communities from flooding and storm surges—lost legal protections on Thursday in a Supreme Court ruling that significantly curtails the reach of the Clean Water Act.
That 1972 law made it illegal to drain, fill, or pollute “waters of the United States” without a permit. The case, Sackett v. Environmental Protection Agency, involved defining which water bodies that phrase applies to. Disagreement has prevailed for decades, with environmentalists arguing for broad protections to safeguard water quality and ecosystems, while builders, manufacturers, and others contend that including more streams and wetlands drives up project costs and infringes on property rights.
In the 5-4 decision, conservative Justice Samuel Alito wrote that wetlands are covered by the law only if they have a “continuous surface connection” to larger water bodies that are clearly regulated by the Clean Water Act. That interpretation upholds a test established by the late Justice Antonin Scalia in a 2006 case, Rapanos v. United States. The ramifications of the decision are profound: It strips protections from more water bodies than the Trump administration’s interpretation, which left about 51 percent of the nation’s wetlands open to development or degradation.
The decision also throws into disarray the Biden administration’s effort to define “waters of the United States.” The EPA issued a rule in December that was seen as a compromise between a more expansive Obama definition and the narrow Trump policy, but federal courts have put it on hold in more than half the country. Biden’s rule, like those issued by previous Republican and Democratic administrations, relied on a different legal test established by then-Justice Anthony Kennedy in Rapanos. Kennedy’s test says the law applies to waters with a “significant nexus” to a navigable waterway. With that foundation for its rule now invalidated by the court’s “continuous surface connection” ruling, the Biden EPA must go back to the drawing board.
Reaction from environmental groups was scathing. “The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands,” said Manish Bapna, president and CEO of the Natural Resources Defense Council, in a statement. “This decision will cause incalculable harm. Communities across the country will pay the price.”
The case was brought by Chantell and Michael Sackett, Idaho property owners who argued that they don’t need a permit to build a home on their land, which the EPA said contains regulated wetlands. While the justices split over the larger jurisdictional question in the case, they agreed unanimously that, in the Sackett’s case, no permit is necessary. “Courts now have a clear measuring stick for fairness and consistency by federal regulators,” said Damien Schiff, a senior attorney at Pacific Legal Foundation who represented the couple, in a statement.
As set forth in Alito’s opinion, that measuring stick dictates that the Clean Water Act applies to a wetland only if it connects with a river, stream, lake, or ocean such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
The ruling “is devastating for wetlands and the benefits they provide to people,” said Royal Gardner, a wetland law expert at Stetson University College of Law, in an email. Scientific improvements have made it possible to define the boundaries of almost any wetland, Gardner said. By his reckoning, that means that only tidal wetlands and those within a river’s typical high-water mark qualify for protections. “The ‘continuous surface water connection’ requirement, which has no basis in science, is bad enough,” he wrote. “But the ‘difficult-to-tell’ requirement is the coup de grâce.”
The majority of wetlands that are now exempt from the Clean Water Act are protected only by state law, if they’re protected at all, says University of Virginia water law expert Leon Szeptycki. “The geographic footprint of the Clean Water Act, as it applies to wetlands, has been dramatically shrunken in a way that, if you care at all about hydrology and aquatic ecology, is deeply troubling,” he says. “All these waters are profoundly connected, biologically and hydrologically.”
Even conservative Justice Brett Kavanaugh expressed concerns about the consequences of Alito’s limited definition. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote, in an opinion joined by the three liberal justices.
More than half of the original wetlands in the contiguous United States have been filled for development, drained for farming, or otherwise destroyed. Wetlands remove pollution from drinking water sources and act as sponges for water and carbon, increasingly important functions as climate change causes worsening floods in many communities. Swamps, marshes, prairie potholes, and other wetland types also are among the most important habitats for many species of birds and other wildlife. “This decision undermines Clean Water Act protections for many types of waterways that birds and people need, all while birds are telling us that more action is needed to protect their future,” said Julie Hill-Gabriel, Audubon’s vice president for water conservation, in a press release.
The ruling is not the first time that the Supreme Court has significantly constrained the Biden EPA’s ability to regulate pollution. In a 6-3 ruling last June, conservative justices barred the agency from issuing broad rules to steer utility companies toward clean power sources. “The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy,” Justice Elena Kagan wrote in an opinion in the new case.
Along with most wetlands, the court’s decision also exempts ephemeral streams that flow only during rain or snowmelt, but which scientists say shape the health of downstream waters, according to Betsy Southerland, former science and technology director in the EPA’s Office of Water. But Southerland says the ruling, which left her “just heartbroken,” does not answer whether the Clean Water Act applies to intermittent streams, which flow steadily but only for parts of the year. The implications are substantial, particularly in the Southwest, where most streams are ephemeral or intermittent—94 percent of them, in Arizona’s case.
The only way to resolve lingering uncertainty, experts say, is for Congress to amend the Clean Water Act to more clearly protect a wider range of water bodies. “If Congress cannot get their act together to do this,” Southerland says, “then the land developers and the miners—those guys are golden.”
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