Supreme Court Conservatives Rule to Drastically Reduce Protections for Wetlands

Sackett decision a big win for land developers, but communities expected to face more flooding and higher water bills.
May 25, 2023

In a 5 to 4 decision, the U.S. Supreme Court ruled that federal protections for wetlands under the Clean Water Act apply only to wetlands with a continuous surface connection to federally protected waterways that make them “indistinguishable” from those waters.

The ruling ignores a wide body of scientific evidence establishing how wetlands affect water quality and could result in more flooding, more water pollution and larger water utility bills for Hoosiers.

The Court ruled against the U.S. Environmental Protection Agency in Sackett v. EPA, a decades-old case brought by an Idaho couple that sought to develop land near a lake without a federal permit in 2004.

The majority conservative Court, led by staunch conservative Justice Samuel Alito, wrote that the Clean Water Act did not define the EPA’s jurisdiction based on “ecological importance,” but on geographic reach to “waters of the United States.”

The decision severely restricted which waterways could be protected under the Clean Water Act throughout the U.S.

“In sum, we hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters,” Alito wrote in the majority’s opinion.

In a concurring opinion, Justices Clarence Thomas and Neil Gorsuch wrote that the decision reins in the federal government.

“The Court’s opinion today curbs a serious expansion of federal authority that has simultaneously degraded State’s authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial water highways into something resembling ‘a local zoning board,’” Thomas wrote.

The decision was lauded by groups like the National Association of Home Builders and the American Farm Bureau Federation, groups that have fought against more protective water regulations for decades.

The groups recently backed an effort by various Republican attorneys general to block the implementation of a Biden administration rule that expanded which waterways fell under federal protection. A federal judge in North Dakota blocked the rule in Indiana and 23 other states.

Environmental and conservation groups operating in Indiana, like Earthjustice, The Nature Conservancy in Indiana, and the Environmental Law and Policy Center decried the Court’s decision.

“We are very disappointed with the Court’s decision. Everyone involved has understood for 50 years, since the Clean Water Act was passed, that protecting our nation’s lakes, rivers, and streams requires protecting upstream tributaries and adjacent wetlands as well,” said Environmental Law and Policy Center senior attorney Scott Strand.

“The Court clearly got this one wrong, at great cost to the environment and to taxpayers. Here in the Midwest, we have lost most of the wetlands the region once had, through indiscriminate drainage and development. The burden of protecting the wetlands we still have will now fall back on state and local governments, who have, at best, a checkered record. Unfortunately, the Court’s decision means dirtier water, more uncontrolled flooding, more net carbon emissions, and a significant loss of wildlife habitat.”

The Court’s decision will have important and potentially expensive consequences for Hoosiers.

Wetlands, including those that do not have a surface connection with federally protected waterways, provide important, costly-to-replicate benefits.

Wetlands act as natural sponges, trapping and slowly releasing water. They essentially purify water and prevent it from flooding downstream areas. Wetlands are also home to a lot of wildlife and aquatic creatures.

Water planning experts have said replacing the functions that wetlands provide for free now would cost communities millions of dollars to replicate. This is on top of the millions of dollars communities already have to invest to replace aging infrastructure and mitigate increased flood risks due to climate change-induced rainfall changes.

The Court’s decision could lead to a repeal of already-weakened state protections for wetlands.

Indiana lawmakers previously used regulatory rollbacks during the Trump administration to pass Senate Enrolled Act 389, which removed all state protections for Class I wetlands, which make up more than half of the state’s remaining wetlands.

During the 2023 legislative session, members of the Indiana Builders Association serving as Indiana lawmakers attempted to pass a last-minute amendment that would have reduced the number of state-protected wetlands even further. The language was approved by the Indiana House of Representatives, but did not become law.

A previous effort by the state to make naturally occurring wetlands suitable for commercial use turned out to be a costly error that has cost millions of dollars to correct.

In 1852, the state enacted a law that called for state “swamp lands” to be sold, drained and reclaimed. This included a large portion of northwest Indiana wetlands called the Grand Kankakee Marsh.

The wetlands were converted into farmlands over decades, which resulted in unforeseen consequences.

The area experienced massive flooding, and wildlife that was common to the area began leaving the state. The Indiana State Conservation Department even experimented with importing Kansas jackrabbits to artificially increase the amount of game in the area.

Beginning in the 1930s, the state began attempting to restore the wetlands, beginning with a $2.5 million investment. State and federal agencies are still spending millions of dollars to fix the problems caused by the loss of wetlands.

Supreme Court Conservatives Rule to Drastically Reduce Protections for Wetlands