Supreme Court Delivers Blow to Clean Water Nationwide

On May 25, 2023, the Supreme Court issued a devastating decision that represents the greatest threat to the nation’s clean water in half a century. The case, Sackett v. EPA, dealt with the fundamental question of which waters the federal Clean Water Act, the landmark law that protects our waters from unregulated pollution and destruction, covers. The case effectively removes federal protections for over half of America’s vital wetlands.

The Clean Water Act: One of America’s Most Successful Laws

The Clean Water Act is the reason that our waters are no longer on fire or used as open sewers, conditions that led to the act’s sweeping, bipartisan passage fifty years ago.

City councilmen inspect pollution in the Cuyahoga River in 1964. Cleveland Press Collection, Cleveland State University Library

Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Act was passed at a time when our waterways were in crisis: the Cuyahoga River infamously has caught fire multiple times, Lake Erie was effectively a dead lake, some rivers were so polluted they peeled paint off nearby buildings.

In response, Congress created a cooperative federal structure that gave the Environmental Protection Agency and the U.S. Army Corps of Engineers broad authority to protect important waters throughout the watershed. At the time, it was clear that Congress recognized that water flows downhill. Without protecting small headwater streams and wetlands that serve and the sponges and kidney of the water system – providing flood control, recharge waters during drought, filter pollution, and habitat – the larger rivers, lake, and estuaries communities and people depend on would not be protected either.

Wildlife like moose depend on clean lakes and wetlands.

For almost thirty years this basic, scientifically sound premise served as the underpinning of the Clean Water Act, with a flurry of successes. Along with investments made in waste water treatment, the safeguards afforded by the Act resulted in huge benefits for people and communities. As detailed in this NWF report celebrating the 50th anniversary of the Act, rivers returned to life, fish and biodiversity surged back, harmful losses of flood preventing wetlands nearly halted, and drinking water sources were kept clean.

What Sackett Means for America’s Waters

After creating confusion over the scope of the Clean Water Act in two earlier cases – SWANCC v. Army Corps of Engineers (2002) and Rapanos v. U.S. (2006) – the Court has now struck a catastrophic blow to fifty years of progress in protecting our waters. In a case concerning the destruction of wetlands just a few hundred feet from the treasured Priest Lake in Idaho lake, the Court, splitting 5-4 on the reasoning, ruled that the Clean Water Act only encompasses “those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and those wetlands that have a continuous surface connection with them.

This ill-advised decision places over half of America’s wetlands that provide flood protection for communities, natural water filtration for drinking supplies, and habitat for wildlife at risk of federally unregulated pollution and destruction. Moreover, the decision raises questions regarding the continued protection of many important headwater streams that don’t flow year-round but are vital to people and wildlife. Erasing these upstream waterways that store and filter water from the landscape would worsen flood, droughts, and water quality. It would also put at risk the drinking water supply of at least 117 million Americans.

Redhead ducks breed mainly in the seasonal ponds and wetlands of the Midwest’s prairie pothole region, which are now under threat after the Supreme Court decision. Photo Monica Fowler/NWF photo contest

As Justice Kavanaugh strongly pointed out in disagreeing with the majority rationale, “By narrowing the coverage of wetlands … the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

With climate change fueling more intense storms, longer and deeper droughts, and temperatures that will catalyze harmful algal growth and exacerbate pollution, the functions performed by healthy natural water systems are all the more critical. And the consequences of the Sackett decision all the more severe.

With climate change fueling more frequent floods, healthy wetlands, which act as sponges to absorb floodwaters, are all the more important. Photo: FEMA

Sadly, these impacts will hit frontline communities hardest. Decades of under-investment in drinking water and proper treatment of waste means communities that have already historically faced disproportionate share of flooding and water pollution, will have to bear the brunt of this ruling.

This case has also undermined EPA’s recent rule to provide clarification of which waters the Clean Water Act protects. EPA is revising this rule in response to Sackett, but its hands are now substantially tied to achieve the goals of the Act. Without Congressional action to restore strong protections, responsibility will fall to a patchwork of state protections.

More than half of North American migratory waterfowl depend on wetlands that are now at risk. Photo from Alan D. Wilson

Despite the Court’s decision, it is imperative that we push forward to defend clean water and the communities that depend on it. Without clean water and healthy systems, we cannot have healthy communities or wildlife.