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"Kesling Wetland and Farmstead" by David Cornwell is licensed under CC BY-NC-ND 2.0.

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The Clean Water Act Is In Jeopardy From A Conservative SCOTUS

What test should courts use to determine whether the Clean Water Act applies to EPA-designated wetlands? The answer could have significant implications for the EPA’s efforts to regulate waterways more broadly.

The first case on the US high court’s fall docket may determine the future of the Clean Water Act.

The important Supreme Court of the United States (SCOTUS) case is scheduled for oral arguments Monday to determine the future of federal jurisdiction over waters and wetlands.

The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the US and for regulating quality standards for surface waters.

Under the Act, the US Environmental Protections Agency (EPA) has implemented pollution control programs such as setting wastewater standards for industry and has developed national water quality criteria recommendations for pollutants in surface waters. It made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.

  • EPA’s National Pollutant Discharge Elimination System (NPDES) permit program controls discharges.
  • Point sources are discrete conveyances such as pipes or human made ditches.
  • Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need a NPDES permit.
  • Industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.

In essence,, no pollutants – including rocks and sand – can be discharged into “navigable waters.” The term “wetlands” includes swamps, marshes, and bogs. “Navigable waters” here refer to the “waters of the United States, including the territorial seas.”

The waters of the US — affectionately known as WOTUS — under debate here are headwaters streams in the West and other waterways that run only when it rains, which are integral to the health of downstream traditionally navigable waters. Especially vulnerable are playa lakes, prairie potholes, Carolina and Delmarva bays, pocosins, and vernal pools.

At Issue: A Desire to Build on a Designated Wetland

In Sackett v. EPA, the SCOTUS will grapple over whether a long-standing test for federal jurisdiction over tributaries to large streams and rivers is constitutional. The case involves Chantell and Michael Sackett of Idaho, who have been attempting for more than 15 years to build a house on land the federal government says includes federal waters.

In 2004, Michael and Chantell Sackett purchased an undeveloped lot 300 feet from Priest Lake, a large lake near the US/ Canada border in the Idaho panhandle. In 2007, the Sacketts – who had obtained building permits from the county – began to prepare the land to build a home on it, depositing roughly 1,700 cubic yards of gravel and sand on the 2/3 acre lot. Then the Sacketts received notice from the EPA to stop building, as the EPA determined those wetlands were protected by the Clean Water Act.

The EPA ordered the Sacketts to restore the site to its original condition; a failure to do so, the EPA told the couple, could lead to fines of over $40,000 per day. Instead of complying with the EPA’s order, the Sacketts went in 2008 to federal court, where they challenged the EPA’s authority to regulate their land under the Clean Water Act.

The Nexus Issue & Its Applications to Federal Waters

A previous ruling regarding the Clean Water Act concluded that any pollution or development causing pollution in a tributary of a navigable river or lake would affect the biology and chemistry of the larger water body. The EPA has since provided scientific underpinnings for the premise that even wetlands that don’t have a direct surface water connection to larger bodies of water can be connected underground. That means pollution can flow from one body of water to the other.

In the newly contested version of the case, however, the SCOTUS may revert to a previous, pre-scientific proof argument, called a “nexus test.” That test ascertains whether a direct surface water connection between wetlands and navigable waters exists in order for wetlands to be considered federally protected waters.

If the court narrows the WOTUS definition, “people will be able fill in those things that were previously considered to be tributaries,” and that could change how water flows in certain places, promoting flooding, Kevin Minoli, a partner at Alston & Bird LLP, told Bloomberg Law.

EPA efforts to protect puddles and ditches on farmland and along roadways have been under contention for years, with developers and many Republicans steadfastly opposed to these types of protections. But the Clean Water Act “expressly contemplates that drainage ditches may be covered waters; the distinction between natural and artificial tributaries has no bearing on whether a tributary can carry water and pollutants into traditional navigable waters,” the EPA wrote in its brief. The EPA said Supreme Court precedent requires those ditches to contain “relatively permanent” water flows for them to receive protection.

A distinction as specific as whether an artificial barrier — such as a road — severs jurisdiction of a wetland on one side from a clearly protected water on the other side will likely come under questioning. A roadway on the Sacketts’ property is an issue in whether the waters there are protected, and it’s possible that even the most restrictive test may allow those waters to keep those protections.

In a brief filed with the court in April, the US Chamber of Commerce argued that the significant nexus test is overly broad in part because it allows federal agencies to “assert authority over vast stretches of water and land, including usually dry channels and isolated wetlands.”

Each administration since 2006 has attempted to expand or slash federal wetlands protections. The justices now have the chance to stop the vacillating positions regarding WOTUS rules by narrowing the definition, developers’ briefs filed in the case argue.

Possible Outcomes for the SCOTUS Ruling

A more limited WOTUS definition could limit the jurisdictions of the federal water permitting program; particular wetlands and waterways that now require a federal permit to fill or dredge could be outside their purview.

The conservative justices may end up separating dredge-and-fill activities like the Sacketts request from discharges of pollutants into public waters, which are governed by Section 402 of the statute.

The court could reach beyond the facts in the record and rule that the existence of a road or other artificial barrier categorically defeats jurisdiction.

A SCOTUS majority could distinguish any lands from waters in a strict binary.

A ruling in the Sacketts’ favor would necessarily ignore the very text of the Clean Water Act and could further undermine public trust in a court that already faces serious questions about its legitimacy.

 
 
 
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Written By

Carolyn Fortuna (they, them), Ph.D., is a writer, researcher, and educator with a lifelong dedication to ecojustice. Carolyn has won awards from the Anti-Defamation League, The International Literacy Association, and The Leavy Foundation. Carolyn is a small-time investor in Tesla. Please follow Carolyn on Twitter and Facebook.

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