Supreme Court weakens Clean Water Act’s wetlands protections

The Supreme Court has ruled that the Clean Water Act (CWA) can only allow the U.S. EPA to regulate discharges into wetlands that are directly connected to, and practically indistinguishable from, protected waters.

Under this 5-4 decision, other wetlands are no longer protected under the CWA.

"I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections," said EPA Administrator Michael S. Regan in response to the decision.

The decision has wide-reaching ramifications for federal regulations on water quality management generally and stormwater management specifically.

"There is still a lot to be seen on how this ruling will impact groundwater across the country," said National Ground Water Association CEO Terry S. Morse.  "But it’s our hope that it will finally bring some clarity and long-term stability to what is enforced under the Clean Water Act. We all do better when there are consistent and fair rules in place, and we hope this is a step in that direction."

Sackett v. EPA

The decision is the conclusion of the case Sackett v. EPA, where Idaho landowners Michael and Chantell Sackett argued against EPA’s ability to prohibit backfilling on wetlands.

The backfilling occurred on wetlands on the Sacketts’ lot. This wetland was near a ditch that fed into a non-navigable creek, which fed into Priest Lake. Priest Lake is easily identified as a protected body of water under CWA but.

The meaning of ‘waters of the United States’ (WOTUS) within the CWA has changed significantly between federal administrations. The court ruled that, under EPA’s and the U.S. Army Corps of Engineers’ (USACE’s) current definition, too much land would be protected under the Act.

“By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt,” reads the Supreme Court’s opinion syllabus.

In the case, EPA had argued that ‘waters’ would naturally include wetlands because water is “universally regarded as the most basic feature of wetlands.”

However, the Court decided that WOTUS can cover “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”

According to the Supreme Court, wetlands can only be considered as part of WOTUS when they have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”

This decision is a significant cut to EPA’s authority on water quality management, as the definition of WOTUS under the CWA decides the reach of the agency’s regulations.

The Court’s reasoning

The argument to limit WOTUS depends mostly on questions of clarity under the CWA.

“Due to the CWA’s capacious definition of ‘pollutant,’ its low mens rea [intention of wrongdoing], and its severe penalties, regulated parties have focused particular attention on the Act’s geographic scope,” said Justice Samuel Alito Jr. in his written opinion. “The CWA prohibits the discharge of pollutants in only ‘navigable waters,’’ which it defines as ‘the waters of the United States, including the territorial seas’ . . . The meaning of this definition is the persistent problem that we must address.”

The Supreme Court’s decision based itself on multiple judicial precedents. The Court used these previous case decisions to justify its limitation of WOTUS.

The Court argued that laws written by Congress should only alter the government’s power over private property with “exceedingly clear language,” as decided in Bond v. United States. It also argued that laws with criminal penalties, like the CWA, should be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” as established in Skilling v. United States.

Using these reasons (and other precedents), five Supreme Court justices decided that the CWA’s language in defining WOTUS was not strictly clear enough to include all adjacent wetlands.

EPA had argued that there could be significant ecological consequences for narrowing the definition of WOTUS, but the Court had flatly rejected the argument.

Five to four

It is important to note that the Court's decision was made by only five of the justices, with the other four disagreeing.

"Congress chose just the word needed to meet the Act’s objective," said Justice Elena Kagan in her dissenting opinion. "A wetland is protected when it is 'adjacent' to a covered water — not merely when it is 'adjoining' or 'contiguous' or 'touching,' or (in the majority’s favorite made-up locution) has a 'continuous surface connection.'

Kagan pointed to the essential functions that wetlands serve, including pollution and flooding control. Kagan also called the application of the 'clear language' requirement "judicially manufactured"

"One last time: 'Adjacent' means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune," said Kagan. "That congressional judgment is as clear as clear can be — which is to say, as clear as language gets. And so a clear-statement rule must leave it alone."

Kagan also pointed to an earlier Supreme Court precedent over the definition of WOTUS: United States v. Riverside Bayview Homes, Inc. Under that case decision, the Court had decided to abide with the U.S. Army Corps of Engineers' regulatory definition of wetlands and its application under the CWA.