The following essay is reproduced with permission from The conversationan online publication covering the latest research.
The United States Supreme Court opens its new session on October 3, 2022 with a high-profile case that could fundamentally alter the federal government’s ability to address water pollution. Sackett v EPA revolves around a question that courts and regulators have struggled to answer for decades: which wetlands and water bodies can the federal government regulate under the Clean Water Act from 1972?
Under this basic environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where the ground is wet all or part of the yearthey therefore overlap this division of authority.
Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and absorbing flood waters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland. It can be time-consuming and expensive, so the case is of great interest to developers, farmers and ranchers, as well as conservationists and agencies administering the Clean Water Act – the Environmental Protection Agency and the US Army Corps of Engineers.
The Supreme Court has already shown a willingness to limit federal regulatory power over environmental matters. From my work environmental law specialist, I expect the court’s decision in this case to narrow the types of wetlands eligible for federal protection. The United States has already lost more than half of its original wetlands, mostly to development and pollution.
The Sacket Affair
Idaho residents Chantell and Mike Sackett own a parcel of land 300 feet from Priest Lake, one of the largest lakes in the state. The plot was once part of a large complex of wetlands. Today, even after the Sacketts cleared the field, it still exhibits some wetland characteristics, such as saturation and puddling in areas where soil has been removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows shallow underground.
In anticipation of building a home, the Sacketts had fill material placed on the site without obtaining a permit under the Clean Water Act. The EPA issued an order in 2007 declaring the land contained legal wetlands and requiring the Sacketts to restore the site. The Sacketts continued, arguing that their property was not a wetland.
In 2012, the Supreme Court ruled that the Sacketts had the right to challenge the EPA order and sent the case back to the lower courts. Now after lose below on bottom, they are back in front of the Supreme Court. The current question is whether the Sacketts’ property is protected by the federal government, which in turn raises a larger question: what is the scope of federal regulatory authority under the Sanitation Act? the water ?
What are “United States waters”?
The Clean Water Act regulates pollutant releases in “United States waters.” Legal discharges may occur if a source of pollution obtains a permit under Section 404 of the Act for dredged or fill materials, or Section 402 for other pollutants.
The Supreme Court has already recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and streams that are connected to navigable bodies of water. However, many wetlands are not wet all year round or are not surface-connected to larger water systems, but may still have important ecological links to larger bodies of water.
In 2006, when the court last considered this issue, no majority could agree on the definition of “United States waters”. Writing for a plurality of four judges in US v. Rapanos, Judge Antonin Scalia defined the term narrowly to include only relatively permanent, stagnant, or continuously flowing bodies of water such as streams, oceans, rivers, and lakes. The waters of the United States, he argued, should not include “usually dry channels through which water flows occasionally or intermittently.”
Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act apply only to “wetlands having a continuous surface connection with bodies that are waters of the United States at full part”.
In a concurring opinion, Justice Anthony Kennedy took a very different approach. “The waters of the United States,” he wrote, must be interpreted in light of the Clean Water Act’s goal to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters. “.
Accordingly, according to Kennedy, the Clean Water Act should cover wetlands that have a “significant connection” to navigable waters – “if the wetlands, alone or in combination with similarly located land in the region, affect significantly the chemical, physical and biological properties the integrity of other covered waters more easily understood as ‘navigable’.
Neither Scalia’s nor Kennedy’s opinion attracted a majority, so the lower courts were left to determine which approach to take. Most applied Kennedy’s significant connection standard, while a few argued that the Clean Water Act applies if either Kennedy’s or Scalia’s norm is satisfied.
Regulators have also struggled with this issue. The Obama administration incorporated Kennedy’s “significant connection” approach into a rule 2015 which has gone through an extensive rule-making process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own this widely adopted the Scalia approach. The Biden administration has proposed a new rule which would consider United States waters present if a significant bond or continuous surface connection is present.
What’s at stake
The court’s final decision in the Sackett case could offer lower courts, regulators and landowners clear direction on what “United States waters” means. And it will likely affect the government’s ability to protect the nation’s waters.
A broad interpretation could include many agricultural ditches and canalswhich could require some farmers and ranchers to apply for permits under Section 404. It could also provide oversight of polluters who dump pollutants upstream of federally protected waters.
The Sacketts claim that the licensing process imposes significant costs, delays and potential restrictions on the use of the property. In response, the Biden administration argues that most landowners can proceed under blanket permits that impose relatively modest costs and charges.
In my opinion, this court anti-regulatory bias— and the fact that no other judge joined Kennedy’s concurring opinion on Rapanos — suggest that this case will produce a narrow reading of “United States waters.” Such an interpretation would compromise the protection of drinking water across the country.
If court requires continued surface connection, federal protection would no longer apply to many areas that critically affect water quality in US rivers, lakes and oceans, including streams seasonal and wetlands that are near or intermittently connected to larger bodies of water. It could also mean that building a road, levee, or other barrier separating a wetland from other nearby waters may be enough to remove an area from federal protection.
Congress could clarify what the Clean Water Act means by “United States waters,” but past efforts to legislate a definition have failed. And today’s deeply divided Congress is unlikely to fare any better. The court’s decision in Sackett may offer the final word on this issue for the foreseeable future.
This article was originally published on The conversation. Read it original article.