EPA Scales Back Wetland Protections After SCOTUS Ruling

Updated August 31, 2023, 2 p.m. EST

• The EPA removed federal protections for a significant portion of the country’s wetlands — a necessary move to comply with the recent U.S. Supreme Court ruling under Sackett v. EPA.
• The ruling narrowed the definition of protected “waters of the United States” under the Clean Water Act (CWA) and redetermined the agency’s power to regulate waterways and wetlands. 
• The justices decided that the CWA only includes streams, oceans, rivers, lakes, and wetlands with a “continuous surface connection to those bodies.” The rule will take effect immediately. As a result, protections for many wetlands will now fall to the states.
• EPA Administrator Michael Regan said in a statement:

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners.”

What was the Supreme Court ruling?

• The conservative-dominated Supreme Court has stripped back the scope of the Clean Water Act (CWA) — decades-old legislation that seeks to protect wetlands and prevent pollution from seeping into rivers, streams, and lakes.
• The court ruled in favor of the Sackett's, who sued the Environmental Protection Agency (EPA) after they were blocked from building their home near Idaho's Lake Priest due to breaches of the CWA. The EPA blocked the construction of the house because it impacts wetlands. 
• Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett ruled that the CWA can only protect "wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights" and not private property.
• Liberal-leaning Justice Elena Kagan dissented, criticizing the Supreme Court's decision to appoint itself "the national decision maker on environmental policy."

What's the background?

• On Oct. 3, 2022, the Supreme Court heard oral arguments on Sackett v. Environmental Protection Agency, representing a 14-year legal battle. This case challenges the EPA's Clean Water Act, a landmark law from 1972 that protects America's water sources by regulating the discharge of pollutants to lakes, rivers, streams, and wetlands. The case questions explicitly how to interpret what land falls within the EPA's jurisdiction. 
• In 2007, the EPA halted the Sackett couple's home construction near Idaho's Lake Priest because the land was a potentially protected wetland under the Clean Water Act.
• In 2012, the couple sued the EPA, challenging the federal government's ability to dictate the developments on their property. The libertarian Pacific Legal Foundation took up their battle, fighting the environmental protections on behalf of the couple.
• The Sacketts' attorney Damien Schiff argued against the EPA's interpretation of "waters of the U.S." as he claimed that his client's property should not be subject to federal protections since its waters do not directly enter into a larger body of water. Both liberal and conservative judges questioned his reasoning.

What are people saying?

• The environmental group Earthjustice decried the verdict, arguing that the ruling will impact wetlands across the country, which will now lose their protections under the CWA.
• Michael Regan, administrator of the EPA, said he was disappointed, stating that the ruling "erodes longstanding clean water protections." Regan continued:

"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 commonsense 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."

• Damien Schiff, a lawyer for the Sacketts, praised the court's decision, saying it "return[s] the scope of the Clean Water Act to its original and proper limits." He continued:

"Courts now have a clear measuring stick for fairness and consistency by federal regulators. [It's] a profound win for property rights and the constitutional separation of powers."

• Jim Murphy, director of legal advocacy for the National Wildlife Federation, said:

"The court's ruling removes these vital protections from important streams and wetlands in every state. We call on both Congress and state governments to step in, plug the gap, and protect our threatened waters and the people that depend on them."

How do you feel about the Supreme Court's decision?

—Emma Kansiz