The Supreme Court Could Shrink Federal Protections for Clean Water

On the first day of its new term, the U.S. Supreme Court will hear a long-running dispute over federal water regulation that climate activists argue could leave millions of acres of wetlands unprotected and potentially intensify pollution of America’s water system.

Idaho couple Chantell and Michael Sackett have been waging a 15-year legal battle with the Environmental Protection Agency (EPA) over whether they can build a home on their property near Priest Lake, Idaho. In 2007, the EPA told the Sacketts that they couldn’t build because the property includes wetlands protected by the Clean Water Act, the primary federal law regulating water pollution. The Sacketts first appealed on a procedural question up to the U.S. Supreme Court, which kicked the case back to the lower courts in 2012.

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A decade later, the Sacketts are back before the high court. Represented by the libertarian law firm Pacific Legal Foundation, the Sacketts are asking the justices to adopt a more limited test for determining which wetlands are covered by the Clean Water Act. Carrie Campbell Severino, the president of the conservative legal advocacy group Judicial Crisis Network, argues that the Sacketts’ request could help countless homeowners and business owners who are “simply trying to make use of their property and are being given crushing levels of regulation.” But environmental activists argue the change could have a sweeping impact on America’s water system, potentially contaminating drinking water and exacerbating flooding.

“It’s really hard to overstate how consequential this is for the Clean Water Act,” says Jon Devine, the director of federal water policy at the environmental advocacy group the National Resources Defense Council (NRDC), which filed a brief in support of the EPA. “This case will likely determine whether tens of millions of acres of wetlands and millions of miles of streams are protected by numerous pollution control programs.”

What are the ‘Waters of the United States’?

Passed in 1972, the Clean Water Act established an expansive framework for regulating water pollution. It banned the discharge of pollutants from a point source—like a pipeline or a man-made ditch—into navigable waters without a permit. The law’s goal, lawmakers wrote, was to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”

But what counts as the “Nation’s waters” has never been totally clear. Does it include wetlands that only occasionally flood? What about wetlands that aren’t close to other bodies of water? The Supreme Court considered this question in 2006’s in Rapanos v. United States and couldn’t come up with an answer. The bench split 4-1-4, with no justice securing a majority for their definition of the “waters of the United States.”

Justice Antonin Scalia and Justice Anthony Kennedy each proposed their own test. Scalia, citing the definition of “waters” in Webster’s Dictionary, argued that the Clean Water Act regulated “relatively permanent, standing or continuously flowing bodies of water,” and did not include channels where water only flowed or drained occasionally. As for wetlands, he argued that they need to be right next to another body of water—so much so that there is no clear demarcation between the two—in order to be protected. Scalia was joined by three of the court’s current conservative majority: Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito.

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Kennedy took a broader approach. In a solo opinion, he wrote that a wetland should be protected if it shares a “significant nexus” with another body of water—meaning that if a developer pollutes the wetland, it would it have a significant impact the physical, chemical, or biological health of another water downstream. In the 16 years since, lower courts have typically applied Kennedy’s test for determining which wetlands are covered by the landmark regulation.

The Sacketts are now asking the Supreme Court to throw out Kennedy’s test and formally adopt Scalia’s. Under the more limited test, they would be able to build on their property because the wetlands don’t share a continuous surface connection with Priest Lake. And they argue the “significant nexus” test gives federal agencies unnecessarily broad discretionary power that has typically been reserved for state and local governments.

“The test hasn’t been shown to have any real limitations,” argues Damien M. Schiff, a senior attorney at Pacific Legal Foundation, who represents the Sacketts. “As a consequence, when the EPA and the [Army Corps of Engineers] employ the test, they often end up being converted to something like land use or zoning administrators, which is an unusual rule for a federal agency to occupy.”

The EPA responds that such a “rigid approach” would “upend an understanding of the Act’s coverage that has prevailed for nearly half a century” and create “arbitrary and shifting distinctions” that would stop the proper regulation of water pollution. Building a levee to protect a river and its adjacent wetland, for example, could strip that wetland of protection because it no longer has a continuous surface connection to the river, the government argues. Such a definition would mean the law’s protection could also “come and go as floods or storms created or breached natural barriers like berms and dunes,” the EPA adds.

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Schiff of Pacific Legal Foundation concedes that fewer wetlands would have federal protection if Scalia’s test is adopted. But he argues that would not necessarily result in a worse environmental outcome. States can always enact their own water laws, he argues, which could “be even more protective than the federal standard.”

But Devine of NRDC disagrees. NRDC estimates that over 45 million acres of wetlands would lose protection if Scalia’s test is adopted, which Devine says could not only worsen flooding as wetlands are eroded but also could contaminate drinking water that draw their source from streams with “significant nexus” connections to wetlands. The EPA estimates that 117 million people get some of their drinking water from systems that rely in part on intermittent, ephemeral, or headwater stream. Anyone who depends on clean water, he argues, should be invested in what the high court ultimately decides.