The United States Supreme Court handed down Sackett v Environmental Protection Agency on May 25, 2023.
We had written about the case in Bulldozers at Your Doorstep several times.
On May 2, 2023, we wrote, the question presented in Petitioners’ brief is, “Did the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. Sec. 1362(7)?”
The logic of the designation is difficult to follow. The property is across the street from Priest Lake, Idaho. The lake is navigable water. There is no water path from the lake to the Petitioners’ parcel. A thirty-foot wide paved road separates the land and lake from the Sacketts’ property.
The EPA acknowledges that there is no stream, river, lake or similar water body on the parcel. It also acknowledged there is no surface-water connection between the Sacketts’ lot and the wetlands complex on the other side of the road. Yet, EPA and the Ninth Circuit nevertheless concluded that the Sacketts’ lot was similarly situated to those across the street wetlands.
The term “navigable waters” was defined in Rapanos v United States, 547 US 715 (2006). In Rapanos, the plurality defined “navigable waters” as traditional navigable water capable of use in an interstate commerce and non-navigable but relatively permanent rivers, lakes and streams as well as abutting wetlands with a continuous surface water connecting to traditional navigable waters.
The Supreme Court in a lengthy decision with two concurring opinions held: The CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. Rapanos v Unites States, 547 U.S. 715, 755, 742, 739 (plurality opinion). To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Ibid. Pp. 6-28
Whereupon the world went crazy.
In an article written by Jeff Turrentine for NRDC, the Supreme Court’s decision in Sackett was called the most important water related US Supreme Court case to come along in a generation. “This decision will cause incalculable harm. Communities across the Country will pay the price.”
The American Rivers Organization issued a statement on May 25, 2023, “In today’s ruling on Sackett v. EPA, the Supreme Court dramatically narrowed the scope of the Clean Water Act, undoing protections that have safeguarded the nation’s waters for over 50 years. Because it erases critical protections for tens of millions of acres of wetlands, the court’s ruling threatens the clean drinking water sources for millions of Americans.”
Overturning federal protections for wetlands makes them vulnerable to pollution and harmful development, which impacts water quality, groundwater supplies, flood protection, and habitat for plants, fish, and wildlife. It will also make it more expensive to treat our water, driving up costs for millions of people. The court’s ruling will allow further destruction of wetlands, which will increase the rate and severity of flooding and flood damages in many places.
The President and CEO of American Rivers, made the following statement:
“The court’s ruling is a serious blow to wetlands, which are essential to clean, affordable drinking water, public health, and flood protection. Today’s ruling puts rivers and people at greater risk from pollution and harm. We urge state officials, the Biden Administration, and Congress to act quickly to safeguard rivers, wetlands, and streams that are so vital to our health and safety, environment, and economy. Rivers should unite us, not divide us.”
We don’t see the outrage. As Justice Alito wrote, “According to the EPA, the ‘wetlands’ on the Sacketts’ lot are ‘adjacent to’ (in the sense that they are in the same neighborhood as) what it described as an ‘unnamed tributary’ on the other side of a 30-foot road. App. 33. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as ‘similarly situated.’ According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States.’”
The majority opinion held that the CWA extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Rapanos, 547 U.S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 22. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.