A look at the uncertain future of clean streams and wetlands in the US
By Elyza Bruce, CAS ‘25 & Common Home Editor
A single legal battle over a water dispute in Idaho could have a major impact on the health of America’s waterways for years to come.
On May 25, 2023, the Supreme Court of the United States (SCOTUS) passed a ruling in the case Sackett v. EPA that substantially narrowed the scope of the Environmental Protection Agency’s (EPA) jurisdiction to regulate streams and wetlands under the Clean Water Act (CWA).
The petitioners in the case, Michael and Chantall Sackett, purchased property near Priest Lake, in Bonner County, Idaho. When they back-filled the lot with dirt and rocks in order to build their new home, the EPA sent them a compliance order informing them that their property contained protected wetlands under the jurisdiction of the CWA. The order threatened the Sacketts with penalties of $40,000 a day if they did not comply and “undertake activities to restore the Site.”
In response, the Sacketts filed suit under the Administrative Procedure Act (APA), alleging that their property didn’t fall within the jurisdiction of the EPA because it did not contain “waters of the United States” and was therefore not subject to federal regulation under the CWA. Since this was a case of jurisdiction, the suit was filed under the APA rather than the CWA directly.
The case quickly escalated from a local dispute to a national fight over the scope of the CWA.
The language of the CWA specifically limits the scope of the Act to the “waters of the United States,” the definition of which has been argued in many cases over the last four decades since the Act’s passage. In this case, the EPA operating in the context of case law hereto date, interpreted “the waters of the United States” to include waters that “could affect interstate or foreign commerce,” as well as “[w]etlands adjacent” to those waters. This interpretation allowed the EPA to regulate the wetland on the Sackett’s property.
In the end, the 6-3 majority opinion, led by Justice Samuel A. Alito, ruled that the “waters of the United States” as defined by the CWA should only encompass “those relatively permanent, standing, or continuously flowing bodies of water” and wetlands should be defined as having “a continuous surface connection” with “traditional interstate navigable waters.”
The ruling struck down the EPA’s definition of “waters of the United States” as overly broad. To illustrate their reasoning, the majority opinion asked, “Does the term encompass any backyard that is soggy enough for some minimum period of time?…How about ditches, swimming pools, and puddles?”
The impacts of the ruling are far-reaching.
The court’s use of the term “relatively permanent” may eliminate protections for ephemeral or intermittent streams that do not flow every day of the year. According to the EPA, ephemeral or intermittent streams make up 59% of all streams in the United States excluding Alaska. This particularly impacts streams in the Southwestern region of the country, where ephemeral and intermittent streams make up 81% of all streams.
Ephemeral and intermittent streams provide the same ecological benefits as perennial streams, such as nutrient transport throughout the watershed, groundwater recharge, water-quality filtering, and much more. The loss of these federal protections will render many of these streams vulnerable to unregulated pollution and development.
The Potomac watershed is one of many watersheds across the country that will be impacted by this decision. According to the Potomac Riverkeeper Network, the Potomac watershed contains many intermittent streams and wetland areas not directly connected to larger “traditional interstate navigable” waters that will now no longer be protected by federal law.
In light of this ruling, Bob Dreher, Legal Counsel for the Potomac Riverkeeper Network, says the criteria for streams and wetlands that qualify for federal protection is still unclear. “We need to be vigilant,” Dreher said. “There are so many streams that are intermittent, and in some cases ephemeral, defining what it actually means will be crucial to keeping federal control and to regulating as much of these streams as possible.”
The narrowed scope of federal protections defined by this ruling will also have considerable consequences for wetlands in the United States. According to Dreher, this ruling will revoke federal protection from “all wetlands that are not directly connected to another flowing body of water with a permanent flow.”
Narrowing the scope of federal protections will have considerable ecological consequences, given the important functions of wetlands, such as filtering water contaminants, absorbing flood waters, erosion protection, carbon sequestration, and providing a habitat to numerous species. According to the United Nations, 35% of all wetlands globally have been lost between 1975-2015, and the rate of loss has accelerated since 2000.
Dreher expounds on the impact: “If these wetlands are not protected under federal law then it falls to state agencies to protect them under state law. State agencies in Virginia and Maryland are both good agencies, the states have embraced a broad jurisdiction over wetlands, but they don’t have the staff or resources to suddenly fill the gap left by the federal government no longer having this jurisdiction.”
Dreher said that environmental groups should work with state agencies to ensure state protections for streams and wetlands are put in place. “There are other states across the country where there will be crucial battles in state legislatures and agencies to try and get them to take as much responsibility for these waters as possible, and that includes trying to get the resources and budget so they have the staff to do it,” Dreher said.
In an official statement concerning the decision, EPA Administrator Michael S. Regan said, “I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections. The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps”
Only time will tell the ripple effects this decision will have on streams and wetlands across the country and whether state governments will step in to fill the gaps left behind by the loss of federal protections. The health of American watersheds and ecosystems at large are at stake.