The following essay is reprinted with permission from The Conversation, an online publication covering the latest research.
The U.S. Supreme Court opens its new session on Oct. 3, 2022, with a high-profile case that could fundamentally alter the federal government’s ability to address water pollution. Sackett v. EPA turns on a question that courts and regulators have struggled to answer for several decades: Which wetlands and bodies of water can the federal government regulate under the 1972 Clean Water Act?
Under the keystone environmental law federal agencies take responsibility for regulating water pollution while state and local governments regulate land usage. These are areas where land is flooded for part or all of the year ,, so they cross this division of authority.
Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland. This can be costly and time-consuming.
The Supreme Court has already indicated a willingness to curb federal regulatory power on environment issues . From my work as an environmental law scholar, I expect the court’s decision in this case to cut back on the types of wetlands that qualify for federal protection. Due to development and pollution, the U.S. has already lost over half of its original wetlands.
The Sackett case
Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel was once part of a large wetland system. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. It is hydrologically connected to the lake by water that flows at a shallow underground depth.
The Sacketts placed fill material on the site in preparation for building a house without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.
In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. Now, after losing below on the merits, they are back before the Supreme Court. The issue at hand is whether Sacketts property is federally protected. This raises another question: What is federal regulatory authority under Clean Water Act?
What are ‘waters of the United States’?
The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the Act for dredged or fill material, or Section 402 for other pollutants.
The Supreme Court has recognized that the “waters” of the United States include not only navigable rivers or lakes but also wetlands and waterways connected to these bodies of water. However, many wetlands are not wet year-round, or are not connected at the surface to larger water systems, but can still have important ecological connections to larger water bodies.
In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. He argued that water of the U.S. should not include “ordinarily dried channels through which water intermittently or occasionally flows
Accepting that wetlands pose a problem in line-drawing, Scalia suggested that the Clean Water Act should only be applied to “only those wetlands that have a continuous surface connection with bodies that are waters within the United States.” .”
Justice Anthony Kennedy concurred in a different approach. He wrote that “Waters of America” should be understood in light of the Clean Water Act’s goal of “restoring and maintaining chemical, physical and biological integrity of the Nation’s waters .”
Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters–“if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'”
Neither Kennedy’s or Scalia’s opinions attracted a majority. Lower courts have had to decide which approach to take. Most have applied Kennedy’s significant nexus standard, while a few have held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.
Regulators also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach. The Biden administration has proposed a new rule that would deem waters of the United States present if either a significant nexus or continuous surface connection is present.
What’s at stake
The court’s final ruling in Sackett could give lower courts, regulatory agencies, and landowners clarity on the meaning of “waters” in the United States. It will also likely impact the government’s ability protect the nation’s water resources.
A broad interpretation could include many agricultural ditches and canals, which might obligate some farmers and ranchers to apply for Section 404 permits. It could also be used to monitor polluters who discharge pollutants downstream of federally protected waters.
The Sacketts assert that the permitting process imposes significant costs, delays and potential restrictions on property use. In response, the Biden administration contends that most landowners can proceed under general permits that impose relatively modest costs and burdens.
In my view, this court’s anti-regulatory bent–and the fact that no other justices joined Kennedy’s concurring Rapanos opinion–suggest that this case will produce a narrow reading of “waters of the United States.” Such an interpretation would undercut clean water protections across the country.
If the court requires a continuous, surface connection, federal protection will not apply to many areas that adversely affect the water quality in U.S. rivers and lakes, oceans, and oceans. This includes seasonal streams and wetlands that are connected to larger bodies of water, or are only intermittently connected. This could also mean that federal protection may not be extended to an area if a road, levee, or other barrier is built to separate it from nearby waters.
Congress could clarify what the Clean Water Act means by “waters of the United States,” but past efforts to legislate a definition have fizzled. Today’s fractious Congress is unlikely to make it any better. Sackett’s decision could be the last word on this matter for the foreseeable future.