On May 25, 2023, the Supreme Court issued its long anticipated decision in Sackett v. EPA, No. 21-45 (US May 25, 2023) (slip op.). Brought by plaintiffs from Idaho looking to develop their property, the case centered on whether wetlands on private property could be regulated by the federal Clean Water Act (CWA). For over five decades, the CWA has applied to “waters of the United States,” (WOTUS) including areas like wetlands, tributaries, creeks and streams, and more. Details on what constitutes “WOTUS” have been heavily litigated during the past three presidential administrations.
A New Test for Wetlands
The objective of the Clean Water Act “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Clean Water Act protections extend to “navigable waters,” which the Act broadly defines as including all the “waters of the United States, including the territorial seas.”
In this recent decision, the Court established a new test to determine if a wetland is subject to the Clean Water Act. According to the opinion, wetlands must be (1) adjacent to a river, stream, or other relatively permanent body of water connected to a traditional interstate navigable water, and (2) have a continuous surface connection with that adjacent water.
This test both limits and muddies the definition of WOTUS, significantly narrows the scope of the Clean Water Act and removes decades-old protections from waterbodies, not just wetlands. In response to the Court’s decision, the Environmental Protection Agency (EPA) issued a statement that reads, in part:
“As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility … Over the past 50 years, we have made transformational progress—rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country. A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters—now and for future generations.”
Puget Soundkeeper has advocated against the very type of outcome asserted by the Court in Sackett. In 2015, Soundkeeper joined a lawsuit challenging parts of the 2015 “Clean Water Rule,” which excluded certain classes of waters from protections. In 2020, Soundkeeper and partners filed a lawsuit challenging the Trump Administration’s proposed changes to the definition of WOTUS.
Over the past decade, Soundkeeper has worked with organizations like Waterkeeper Alliance and Earthjustice to prepare a host of comments on proposed WOTUS regulations, and on briefs submitted both in support and opposition to different WOTUS cases as they have moved through the courts. Soundkeeper fights for strong and comprehensive protections for our nation’s waters, consistent with the purpose and objective of the CWA.
Wetlands Are Vital
WOTUS’ definition is a vital baseline issue for clean water advocacy and determines whether, and to what extent, the CWA applies to all types of waterways across the nation. Hydrologic systems are, by their nature and function, linked. No wetland exists independently from a watershed. The Sackett opinion is troubling because wetlands provide critical ecosystem functions and support public health investments and sustainable development goals.
Wetlands purify water, control flooding and erosion, support biodiversity, store carbon, and regulate climate. In addition, healthy wetlands recharge aquifers and play an important part in minimizing water insecurity. Wetlands are invaluable on an environmental, social, and economic level, and the costs associated with their degradation are extreme.
Puget Soundkeeper will continue to evaluate the propagation and implementation of our clean water laws. We will continue to work with stakeholders in federal, state, and Tribal governments, in our community, and in local industry. We will continue to advocate for scientifically sound regulations, practices, and policies to protect and enhance the waters of Puget Sound—and the United States—for all that depend on them.
Stay tuned for updates.