What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways

The 2023 ruling by the U.S. Supreme Court (SCOTUS) in Sackett v. Environmental Protection Agency (EPA) had enormous ramifications for the health of the nation’s waterways. In fact, it wouldn’t be hyperbole to call Sackett the most important water-related Supreme Court decision in a generation. Unfortunately, a majority of the justices used the case as a tool for dramatically weakening the Clean Water Act—by deciding for themselves, without any scientific support whatsoever, what wetlands deserve protection from pollution and destruction. More recently, Trump’s EPA issued guidance to exclude even more types of wetlands from protection. 

The background of the case

Michael and Chantell Sackett, who ran an excavation company, sought to develop property a few hundred feet from Priest Lake, a popular vacation site in the Idaho Panhandle, with plans to build a house there. To prepare the lot for construction, the Sacketts began to fill it with gravel. In 2007, responding to a neighbor’s complaint, the EPA halted the work after determining that the Sacketts’ lot contained a federally protected wetland. Under the authority granted to it by the Clean Water Act, the agency ordered the couple to remove the gravel and cease any further construction without a permit. The Sacketts sued in 2008, and the case wound its way through the federal court system for the next 14 years. Among other things, their lawyers argued that the wetland the Sacketts filled was not a protected “water of the United States,” merely because there was dry land between it and other bodies of water—and thus it wasn’t subject to EPA regulation.

What are the “waters of the United States”?

Since 1972, the Clean Water Act has played an essential role in protecting the country’s diverse array of aquatic environments from pollution and keeping them safe for fishing, swimming, and wildlife (not to mention as sources of drinking water for millions of people). And for roughly that same amount of time, the act has also been the target of polluters and developers who would like to limit its regulatory scope. One way they’ve attempted to do so? By focusing on a particular—and pivotal—bit of language found in the law, five simple words that carry enormous legal weight: “waters of the United States” (or WOTUS, for short).

Numerous pollution control programs in the Clean Water Act apply only to these protected waters. For most people, defining “waters of the United States” is a pretty straightforward matter: The phrase refers to—or at least seems like it would be referring to—the many different bodies of water to be found within the geographical borders of our nation. And according to Jon Devine, the director of NRDC’s federal water policy team, that’s pretty much the correct way to define it.

“Congress intended the phrase to be interpreted very broadly,” says Devine. When lawmakers were drafting the Clean Water Act half a century ago, he says, they envisioned its protections as extending to all the various bodies of water that make up a watershed, many of which people use for recreation, fishing, and drinking water supply. And while those lawmakers may not have been hydrologists, they nevertheless understood the fundamental interrelatedness of these different bodies of water. “So the very earliest regulations set forth by the EPA were inclusive,” Devine notes. As a jurisdictional matter, WOTUS comprised “all the relevant parts of an aquatic ecosystem, including streams, wetlands, and small ponds—things that aren't necessarily connected to the tributary system on the surface, but that still bear all kinds of ecological relationships to that system and to one another.”

Still, given the restrictions on how people could interact with these protected waters, interested parties were inclined to litigate the meaning of the term over the decades. “There were always fights about it,” Devine says. “A developer who wanted to bulldoze a wetland, or a polluter who was being prosecuted for dumping into a small stream, would question whether that particular feature should really be considered a water of the United States.” But, as Devine notes, “they largely lost.” And as a result, the more inclusive definition prevailed. Or at least it did until the early 2000s, when cracks in that foundation began to develop—cracks that ultimately led to the Clean Water Act’s rupture at the hands of the current Supreme Court.

SCOTUS on WOTUS

To grasp the importance of the Sackett ruling, it’s important to understand the tension between two past opinions authored by Supreme Court justices Antonin Scalia and Anthony Kennedy in an earlier 2006 case, Rapanos v. United States. Like Sackett v. EPA, it also involved someone filling wetlands without a permit to do so. In their individual opinions, Scalia and Kennedy outlined two contrasting ways of identifying which waters merited protection under the Clean Water Act. For Scalia, those that qualified had to be either so-called navigable waters (think rivers, lakes, basically anything that can accommodate a boat), regularly flowing tributaries to those waters, or wetlands—so long as those wetlands had a continuous surface connection to a body of water that already enjoyed federal protection.

Kennedy saw things differently. He maintained that the connection between wetlands and other bodies of water didn’t necessarily have to be visible—i.e., continuous and on the surface—but could be measured in other ways. For Kennedy, the far more important question was: Does a given wetland share a significant nexus with another, adjacent body of water that’s already protected? Or (in somewhat plainer English), would polluting or destroying certain wetlands affect the physical, chemical, or biological health of the second body of water? If the answer was yes, Kennedy believed, then both deserved the same level of protection.

Although the lower courts consistently ruled that wetlands satisfying Kennedy’s test must be protected (consistent with the views of both the Bush and Obama administrations), polluting industries kept arguing that Scalia’s view should govern. The Trump administration adopted a definition based on the Scalia approach, but it was struck down in court when the Biden administration refused to defend it. Which brings us to Sackett: a case that has effectively turned the tables by solidifying Scalia’s view as the new standard for determining the connectedness of water bodies. 

The impact on our wetlands, water, and wildlife

Wetlands are not only crucial to biodiversity—with 40 percent of species reliant on them at some point in their lives—but they also filter pollutants out of drinking water and help protect communities from flooding and storm surges. Unfortunately, since the Supreme Court ruling two years ago, tens of millions of acres of wetlands previously eligible for protection by the Clean Water Act are now at risk from development and pollution. This was one of the findings in a new report by NRDC, the most comprehensive analysis to date that looks at the potential consequences of the Sackett ruling on the nation’s water resources. 

Using GIS modeling, the researchers were able to estimate which wetlands and streams in the continental United States would lose protections under three different interpretations of the Sackett ruling. In the least-damaging scenario, which is similar to the legal interpretation followed by the Biden administration, the Clean Water Act would no longer protect an estimated 19 million acres of wetlands—an area the size of South Carolina.

That’s terrible enough, but industrial interests have pushed for a much stricter interpretation, one that would exclude any wetland that is not “indistinguishable” from nearby bodies of water. This scenario, the most damaging the researchers examined, would have much more dire consequences for flooding mitigation, habitat conservation, and drinking water quality. Here, about 95 percent of individual wetlands would not be protected, resulting in a staggering 71 million acres of wetlands left vulnerable to destruction. Collectively, those wetlands would cover an area larger than Nevada. Recently, U.S. Environmental Protection Agency Administrator Lee Zeldin announced plans to revise—and likely roll back—Clean Water Act regulations, sparking fears that the agency would attempt to adopt something like this catastrophic interpretation. 

The harm that the Sackett ruling inflicts would also not fall evenly across the country. Those states with more wetlands—think Minnesota, the “Land of 10,000 Lakes”—may see the most losses under any of the scenarios, but we must not dismiss the enormous ecological value of wetlands in drier states. For instance, 98 percent of Arizona’s wetlands could lack protection under the interpretation preferred by industry. In addition to creating a high risk for flooding for hundreds of thousands of properties, wetland losses on that scale could spell extinction for imperiled wildlife such as the southwest spring firefly. 

The report states, “If something like our most damaging scenario were to apply, the Clean Water Act would be virtually meaningless for wetlands protection.”

NRDC’s Devine hopes that the mapping resource will encourage decision-makers to act—both on the state level, to fill the gaps left by the federal government as it abandons its duty to protect our waters, and on the national level, to fight against these damaging cuts. Some states have been stepping up to the plate already, most notably Colorado, which passed a new law to protect the kinds of waters the Supreme Court left behind.

“Our experience tells us that we have a lot of work to do—and that it will be tough,” Devine says. “But NRDC and our partners are going to fight until the protections we need for our waterways are in place for communities in every corner of the nation.”

This story was originally published on June 5, 2023, and was updated with new information and links.

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