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Critical Clean Water Act Case To Be Decided by the US Supremes: Many of the Nation’s Wetlands Are At Risk

Little girl looking at mountain lake. Headline: Will the clean water act survive past 50? It is up the the US Supremes
Photo: Chance Agrella via Freerange | Columbia County Observer graphic

TALAHASSEE, FL – The Clean Water Act turns 50 this week, but parts of it are being challenged in a case before the US Supreme Court.

The case, Sackett v. EPA, could allow factories, hog farms, and wastewater plants to pollute waters in states that lack strong water-quality protections.

Jim Murphy, director of legal advocacy at the National Wildlife Federation, said the case could result in a cascading effect across the country.

Facts of the case via Oyez

Michael and Chantall Sackett own a residential lot near Priest Lake, Idaho, and want to build a home there. However, shortly after they began placing sand and gravel, the federal Environmental Protection Agency told them that they could not build on their lot because construction on the land violated the Clean Water Act. According to the EPA, the Sacketts’ lot contained wetlands that qualify as “navigable waters” regulated by the Act, so they needed to remove the sand and gravel and restore the property to its natural state.

Litigation ensued, and in 2012, the Supreme Court permitted the Sacketts to litigate their challenge to the EPA’s order in federal court. During the litigation, the EPA removed its compliance order.

The U.S. Court of Appeals for the Ninth Circuit held that the EPA’s withdrawal of the compliance order did not render the Sacketts’ challenge moot and that the EPA does have jurisdiction over their property under the Clean Water Act. The court reasoned that, under binding circuit precedent, “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.”


What is the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act? 

"Could potentially, depending on how the court rules, remove important federal protections from pollution and destruction for up to half of the nation's wetlands and maybe 60 to 70% of the nation's streams," he said, "including many streams that could provide the source waters for people's drinking supplies."

A new report from the National Wildlife Federation said the case, if plaintiffs are successful, would be "disproportionately felt by low-income communities and communities of color that already have inadequate water and wastewater infrastructure and face greater flood risk." Its progress report on Florida's current water quality labels it "in need of improvement."

Florida has implemented some of its own measures to protect water, including a controversial program that pays ranchers to retain runoff on their own land. Critics have said it amounts to "corporate welfare" because the ranchers get taxpayer money for doing very little.

Nationally, Murphy pointed to polls that show 75% of adults are in favor of seeing protections for more waterways and want the Environmental Protection Agency to take the lead in protecting natural waterways.

"Again, these natural systems provide functions that are very, very hard to replace," he said, "and very expensive to replace through engineering and other means."

This 14-year legal battle has brought the Sacketts to the Supreme Court for the second time. Their first was in 2012 when they were granted the right to sue the EPA. A decision is expected in 2023.

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