Supreme Court rolls back federal safeguards for wetlands under Clean Water Act | CNN Politics (2023)

Supreme Court rolls back federal safeguards for wetlands under Clean Water Act | CNN Politics (1)

People visit the front of the U.S. Supreme Court Building on April 19, 2023 in Washington, DC.

Washington CNN

The Supreme Court on Thursday cut back on the Environmental Protection Agency’s ability to regulate wetlands under the Clean Water Act, with a 5-4 majority continuing a trend in which the conservative-leaning court has narrowed the reach of environmental regulations.

The Clean Water Act extends only to those “wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights,” Justice Samuel Alito wrote for the majority.

(Video) SCOTUS Limits EPA’s Power to Protect Wetlands, Further Gutting Agency

The decision is a victory for Chantell and Michael Sackett, who purchased a vacant lot near Idaho’s Priest Lake. Three years later they broke ground, hoping to build a family home, but soon got entangled in a regulatory dispute. As they began backfilling the property with 1,700 cubic yards of sand and gravel to create a stable grade, the EPA sent them an order halting construction.

“The wetlands on the Sackett property are distinguishable from any possibly covered waters,” Alito wrote, because they are not directly connected to them. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined Alito’s opinion.

Alito said that the wetland had to have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.”

Kavanaugh and liberals say majority has ‘rewritten’ environmental law

Justice Brett Kavanaugh was the only conservative who broke ranks.

Writing for himself and liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, Kavanaugh agreed that the Sacketts should prevail in the case at hand because their land should not have been covered by the law, but would have ruled for them on narrower grounds without changing the statutory definition at issue: “waters of the United States.”

The majority had “rewritten the Clean Water Act” and ignored its text as well as “45 years of consistent agency practice,” Kavanaugh wrote.

Kavanaugh insisted that the lands to be regulated did not have to physically touch an adjacent waterway to constitute “waters of the United States,” but that they could include wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.” He noted that eight different administrations since 1977 had recognized such wetlands as being protected.

The statutory text, Kavanaugh wrote, “does not require a continuous surface connection between those wetlands and covered waters.”

“By narrowing the (Clean Water) Act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “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.”

(Video) Will the Supreme Court Send the Clean Water Act Downstream?

CNN Supreme Court analyst Steve Vladeck said the ruling “is yet another example of how justices who are publicly committed to ‘textualism’ can nevertheless divide, sometimes sharply, as to how to parse the text of statutes Congress has written.”

“When you see separate opinions by Justices Kagan and Kavanaugh that both take serious issue with the textual analysis of the majority opinion, that’s a powerful reminder that justices from across the ideological spectrum can construe the same text differently,” said Vladeck, who is also a professor at the University of Texas School of Law.

Damien Schiff, a lawyer for the Sacketts, praised the court’s decision on Thursday, saying it would “return the scope of the Clean Water Act to its original and proper limits.”

“Courts now have a clear measuring stick for fairness and consistency by federal regulators,” Schiff said, calling the ruling “a profound win for property rights and the constitutional separation of powers.”

West Virginia GOP Attorney General Patrick Morrisey, who led a multi-state coalition in a friend-of-the-court brief supporting the Sacketts, also praised the ruling, saying the group is “pleased the Supreme Court ruled in a way that state lands and waters are less subject to the whims of unelected bureaucrats.”

EPA Administrator Michael Regan said he was “disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” adding that the agency will “carefully review” the ruling and “consider next steps.”

And the Natural Resources Defense Council said that the ruling is a “gut punch” that “will make people’s lives worse by enabling the destruction and pollution of millions of acres of wetlands that curb flooding and filter pollution.”

“It means that the federal safeguards against those wetlands being polluted or destroyed are are no longer effective,” said Jon Devine, an attorney with the NRDC.

“In some places, there will be state or local laws, but a lot of places rely on the federal law to provide those safeguards and it’s really hard to overstate how much of an undermining of protections this is,” he added.

(Video) Basics of the Clean Water Act (ELI Summer School, 2022)

The Justice Department declined CNN’s request for comment.

Lower courts split on a definition

The case had environmentalists – who were deeply disappointed last term when the court’s conservative majority curbed the agency’s authority to regulate power plant emissions – on edge. Wetlands – such as swamps, bogs and marshes – are under the EPA’s authority, but the case centered on a test to determine which wetlands are subject to federal regulation.

After the case was argued, the EPA issued long-anticipated guidelines on its own that were more similar to Obama-era guidelines than to the framing that the challengers in the case and their industry guidelines proposed.

Critics of the EPA’s position in the case cast the dispute as a fight for landowners across the country who want to make use of their property without the interference of overzealous federal regulators.

The Clean Water Act allows the EPA to regulate “waters of the United States,” but lower courts were divided on the exact definition of such waters.

At one point during the dispute, the Sacketts were ordered to take actions to restore the site and were told if they did not, they could be faced with penalties of over $40,000 per day.

CASTLE DALE, UT - OCTOBER 9: Emissions rise from the smokestacks of Pacificorp's 1440 megawatt coal fired power plant on October 9, 2017 in Castle Dale, Utah. It was announced today that the Trump administration's EPA will repeal the Clean Power Plan,that was put in place by the Obama administration. (Photo by George Frey/Getty Images) George Frey/Getty Images Supreme Court curbs EPA's ability to fight climate change

Their property is bound by roads to the north and the south, but across the street is a man-made ditch that drains about 35 acres of wetlands. The necessary permit would have cost thousands of dollars and taken around two years to obtain. The Sacketts stressed that they had obtained all local building permits, that their site was bordered by developed properties and roads, and that nothing in their deed suggested that their lot contained wetlands. They sued the EPA, claiming that its jurisdiction under the law did not stretch to their property.

The Clean Water Act was passed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It extends to “all navigable waters” and prohibits individuals without permits from discharging pollutants including rocks and sand into those waters. Since the CWA was enacted, however, courts have struggled to identify the exact definition of “waters in the USA.”

(Video) Waters of the United States: Interpreting the Clean Water Act

Schiff, the Sacketts’ attorney, told the justices in court papers that his clients’ case was “emblematic of all that has gone wrong with the implementation of the Clean Water Act.”

“The Clean Water Act does not regulate wetlands standing alone,” Schiff argued.

A government lawyer told the justices that for decades the EPA has interpreted the law to cover wetlands adjacent to other waters covered by the law.

“Wetlands play an essential role in protecting the chemical, physical, and biological integrity of neighboring waterways, including by filtering pollutants, storing water, and providing flood control,” he said.

A federal appeals court ruled in favor of the EPA.

“The record plainly supports EPA’s conclusion that the wetlands on the Sacketts property are adjacent to a jurisdictional tributary and that, together with the similarly situated Kalispell Bay Fen, they have a significant nexus to Priest Lake, a traditional navigable water,” the appeals court held.

Liberals look forward

Kagan, Sotomayor and Jackson did, in fact, vote in favor of the Sacketts, joining their more conservative colleague, Kavanaugh, in an opinion that would have given the EPA more authority in the area.

But Kagan also wrote a separate opinion, joined only by Sotomayor and Jackson, that launched a warning about the general direction of the conservative majority when it comes to interpreting statutes, potentially foreshadowing future disputes.

“The Court substitutes its own ideas about policymaking for Congress’s”, Kagan wrote, echoing language she has used in the past.

(Video) This Trump plan would strip protections from wetlands and smaller waterways

“The Court, rather than Congress, will decide how much is too much,” she said, adding, “that is not how I think our government should work.”

This story has been updated with additional details.

CNN’s Devan Cole and Sydney Kashiwagi contributed to this report.


Does the Clean Water Act protect wetlands? ›

The Clean Water Act Section 404 Program. The principal federal program that provides regulatory protection for wetlands is found in Section 404 of the Clean Water Act (CWA). Its intent is to protect water and adjacent wetland areas from adverse environmental effects due to discharges of dredged or fill material.

How does the federal government protect wetlands? ›

Federal Laws, Regulations, and Policies to Protect Wetlands. The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution and regulating water quality standards for surface waters.

Under which piece of federal legislation do wetlands have protection? ›

The primary federal law is the Clean Water Act (CWA), which has sections that deal exclusively with the regulation of the fill and use of wetlands. No other federal law protecting wetlands has the regulatory teeth or policy impact of the Clean Water Act.

Which conservation problem was addressed by the Clean Water Act? ›

Growing public awareness and concern for controlling water pollution led to enactment of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251 et seq.).

Are wetlands being protected? ›

How are California's wetlands protected? California's unique and vulnerable wetlands are often impacted adversely by human use, and are therefore protected by a combination of regulations, incentives, and grant-funded restoration programs.

How did the Clean Water Act affect wetlands? ›

The Clean Water Act helps to protect rivers, streams, and wetlands through two permitting programs. One requires permits for any point source—for example, discharges from a factory or wastewater treatment plant—discharging into “waters of the United States,” thereby limiting pollutants added to lakes and streams.

Why do federal laws now protect wetlands? ›

America's Wetlands

Wetlands are important because they protect and improve water quality, provide fish and wildlife habitats, store floodwaters and maintain surface water flow during dry periods.

What does the Clean Water Act say about wetlands? ›

Clean Water Act (CWA)

"Clean Water Act" became the Act's common name with amendments in 1972. Section 404 - establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands.

Can you build on protected wetlands? ›

You'll have to have a permit if you want to build on or develop any regulated wetland, and you have to be approved for that permit before starting to build. Permits are approved once the delineation process is done. The USACE evaluates over 85,000 permit applications per year, and out of those, around 95% are approved.

Which law prohibits development in wetlands without proper government permission? ›

Protection of Wetlands (Executive Order 11990)

Who is affected by the protection of the wetland? ›

Fish and Wildlife Habitat

Many other animals and plants depend on wetlands for survival. Estuarine and marine fish and shellfish, various birds and certain mammals must have coastal wetlands to survive. Most commercial and game fish breed and raise their young in coastal marshes and estuaries.

What is the biggest problem with the Clean Water Act? ›

Shortcomings of the Clean Water Act and its Implementation

Beyond its language, the Clean Water Act fails to regulate “nonpoint source pollution,” or pollution that doesn't come from a discrete location, such as agricultural runoff.

What was controversial about the Clean Water Act? ›

Despite this, the Clean Water Act has been controversial, for two reasons. First, there is no clear evidence that the Clean Water Act has decreased pollution, or even whether water pollution has fallen(Adler et al. 1993). Second, some argue that the Clean Water Act's costs have exceeded its benefits.

What is the current status of the Clean Water Act? ›

The 2015 Clean Water Rule was repealed by the 2019 Rule, which reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

When did wetlands become protected? ›

Executive Orders 11988, Floodplain Management, and 11990, Protection of Wetlands, were signed by President Carter in 1977. The purpose of these Executive Orders was to ensure protection and proper management of flood plains and wetlands by Federal agencies.

Why are wetlands getting destroyed? ›

Human activities cause wetland degradation and loss by changing water quality, quantity, and flow rates; increasing pollutant inputs; and changing species composition as a result of disturbance and the introduction of nonnative species.

What is false about wetlands? ›

Answer and Explanation: The statement that is not true about wetlands is that wetlands only exist in freshwater areas or choice d.

Has the Clean Water Act been successful? ›

The Clean Water Act has been successful at reducing pollution that enters our rivers and lakes from 'point sources. ' These are single, identifiable sources of pollution like wastewater treatment plants and factories. However, 'nonpoint source' pollution is still a significant problem for clean water.

Do we get drinking water from wetlands? ›

While wetlands in all areas of the state are important, the Delta and related wetlands take on special significance because they are part of the vast complex of waterways that provide two-thirds of California's drinking water.

Do wetlands improve water quality by cleansing or filtering? ›

Wetlands purify our water by removing sediments and other pollutants including chemicals. Wetlands also filter and process excess nutrients that may runoff from agricultural and development sites. Wetlands have been called “the kidneys of our watersheds.”

Who regulates wetlands in the United States? ›

Environmental Protection Agency (EPA)

The EPA writes guidelines for determining whether a particular activity that will affect wetlands can be permitted and oversees the regulatory process conducted by the USACE and the state governments.

What are three reasons why wetlands should be protected? ›

Wetlands are valuable for flood protection, water quality improvement, shoreline erosion control, natural products, recreation, and aesthetics.

What is the US policy for mitigating the loss of wetlands? ›

No net loss is a mitigation policy goal aiming to prevent and offset the destruction or degradation of wetlands. Under this bi-partisan policy, wetlands currently in existence are to be conserved if possible. No net loss is achieved through a coordinated effort of: wetlands protection.

Do you think the Clean Water Act is important? ›

The Clean Water Rule protects streams and wetlands that are scientifically shown to have the greatest impact on downstream water quality and form the foundation of our nation's water resources.

What does the Clean Water Act make illegal? ›

The CWA 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 man-made ditches.

Why is the Clean Water Act constitutional? ›

Like every law of the land, the Clean Water Act (CWA) finds its legal basis in the United States Constitution. The Commerce Clause, Article I, Section 8 of the Constitution grants Congress the power to regulate intra and interstate commerce.

What are three ways that wetlands help to clean water? ›

Wetlands can improve water quality by removing pollutants from surface waters. Three pollutant removal processes provided by wetlands are particularly important: sediment trapping, nutrient removal and chemical detoxification.

What are some issues happening in the wetlands? ›

Although modern legislation has greatly slowed wetland loss, the U.S. continues to lose almost 60,000 acres per year. Moreover, the ecological health of our remaining wetlands may be in danger from habitat fragmentation, polluted runoff, water level changes and invasive species, especially in rapidly urbanizing areas.

How do wetlands prevent property damage and potentially save lives? ›

They function like natural tubs, storing flood waters that over- flow riverbanks and surface water that col- lects in depres- sional areas. In this way, wet- lands can help protect adjacent and downstream property from flood damage.

Can you put a fence around wetlands? ›

Installation of a fence is possible on a wetland. Just like it is possible to build a house on a wetland. Although it requires a slightly different strategy and different techniques. This may result in much higher construction costs.

What are the laws protecting wetlands in the US? ›

Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters, including wetlands. Tax deductions are given for selling or donating wetlands to a qualified organization. The federal government protects wetlands by establishing national wildlife refuges.

Can you build next to wetlands? ›

You can build on wetlands as long as they're not jurisdictional, but that doesn't mean you won't be fighting an uphill battle. When wetlands are filled, the water that makes them wet has to go somewhere. If you're building on these lands, you have to consider that your home or business may be damaged by this water.

Which president signed into law the no net loss policy for wetlands? ›

The goal of “no-net-loss” of wetlands was first set out by President George H.W. Bush during his 1988 presidential campaign, and was announced as an administration policy at an EPA press conference in January, 1989.

What federal law defines the term wetland? ›

Section 404 of the Clean Water Act.

What provision was made by the Farm Act of 1985 to protect wetlands? ›

Swampbuster is a provision officially titled the Wetland Conservation provisions of the Food Security Act of 1985 (P.L. 99-198) that discourages the conversion of wetlands to cropland use. The purpose was a balance between attempting to reduce crop subsidies, and conserving wetlands (1985 Conference Report).

What are 3 negative impacts of wetlands? ›

Direct impacts result from disturbances that occur within the wetland. Common direct impacts to wetlands include filling, grading, removal of vegetation, building construction and changes in water levels and drainage patterns.

What are there two main threats to wetlands? ›

Major Threats to Wetlands. Threats to wetlands can be divided into two general groups – those resulting from natural processes and those from human activities.

Who is the leader in wetlands conservation? ›

The Leader in Wetlands Conservation

Ducks Unlimited conserves, restores, and manages wetlands and associated habitats for North America's waterfowl. These habitats also benefit other wildlife and people.

How many times has the Clean Water Act been violated? ›

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves.

Why was the Clean Water Act unsuccessful? ›

But while the Clean Water Act effectively targeted “point sources” of pollution, such as factories and sewage plants, it didn't include strong controls for “non-point sources,” such as farm field runoff. And over the past 50 years, farming—especially animal agriculture—has changed dramatically.

Do states enforce the Clean Water Act? ›

Like other federal environmental statutes, the Clean Water Act includes provisions to address civil and criminal violations. Enforcement is shared by the EPA and states, though states generally have primary responsibility given their role in enforcing the discharge permit program and water quality standards.

Has Scotus repealed the Clean Water Act? ›

Today five Justices of the United States Supreme Court reversed a California Federal District Court Judge's decision vacating a Clean Water Act rule enacted by the Trump Administration EPA. The 2020 rule had reduced the role of States and Tribes in the issuance of certain Federal Clean Water Act permits.

Who got rid of the Clean Water Act? ›

EPA Administrator Michael Regan announced Wednesday that his agency will formally repeal the 2020 Navigable Waters Protection Rule, which removed federal pollution oversight from tributaries of iconic waterways and broad swaths of the arid West.

Did Congress pass the Clean Water Act? ›

Fifty years ago, the Congress passed the Clean Water Act of 1972, revolutionizing America's responsibility to protect and restore the vital waterways that sustain our communities, our economy, and our ecosystems.

Are wetlands considered waters of the US? ›

Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands considered "jurisdictional" under the Clean Water Act (CWA) - as in, they are within the regulatory jurisdiction of the United States Army Corps of Engineers (USACE).

What is the new rule of the waters of the United States? ›

Under this new rule, wetlands and other water bodies that meet either of the judicially created tests would be regulated under the Clean Water Act: Being “relatively permanent,” standing or continuously flowing or with a connection to larger waterbodies; or.

What is a wetland under the Clean Water Act? ›

"Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

What does the Clean Water Act not protect? ›

The CWA does not specifically address contamination of groundwater resources, a subject addressed by provisions in other laws including the Safe Drinking Water Act; the Resource Conservation and Recovery Act; and the Comprehensive Environmental Response, Compensation, and Liability Act.

What waters does the Clean Water Act protect? ›

For three decades, both the courts and the agencies responsible for administering the Clean Water Act interpreted this phrase to broadly encompass all streams, wetlands, rivers, lakes, and coastal waters. However, in two decisions – Solid Waste Agency of Northern Cook County v.

What is protected under the Clean Water Act? ›

The CWA 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 man-made ditches.

Are wetlands protected under the wetlands Act of 1975? ›

The State Legislature passed The Freshwater Wetlands Act (PDF) (129 kB)(Act) in 1975 with the intent to preserve, protect and conserve freshwater wetlands and their benefits, consistent with the general welfare and beneficial economic, social and agricultural development of the state.

Why did the Clean Water Act fail? ›

But while the Clean Water Act effectively targeted “point sources” of pollution, such as factories and sewage plants, it didn't include strong controls for “non-point sources,” such as farm field runoff. And over the past 50 years, farming—especially animal agriculture—has changed dramatically.

Which part of the government has authority to enforce the Clean Water Act? ›

Its laws and regulations are primarily administered by the U.S. Environmental Protection Agency (EPA) in coordination with state governments, though some of its provisions, such as those involving filling or dredging, are administered by the U.S. Army Corps of Engineers.

Are wetlands considered waters of the state? ›

3-3.3 Waters of the State

It includes rivers, streams, lakes, wetlands, mudflats, vernal pools, and other aquatic sites.

Has the Clean Water Act been effective? ›

The Clean Water Act has been successful at reducing pollution that enters our rivers and lakes from 'point sources. ' These are single, identifiable sources of pollution like wastewater treatment plants and factories. However, 'nonpoint source' pollution is still a significant problem for clean water.


1. The Next Fifty Years of the Clean Water Act: Examining the Law and Infrastructure Project Completion
(T&I Committee Republicans)
2. Webinar: Dirty Water Rule – Clean Water Act Under Attack 3/6/19
3. The Clean Water Act at 50: New Challenges Around the Bend
(UVA Engagement)
4. Wetlands Regulations and the Clean Water Act
(Fayetteville Public Library)
5. Clean Water Act Changes Concern Farmers
6. Basics of the Clean Water Act (ELI Summer School, 2021)
(Environmental Law Institute)
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