The U.S. Supreme Court heard oral arguments on Monday in a case that could weaken federal protections for wetlands and reduce the overall health of waterways in Indiana and the rest of the country.
At issue is whether a test for determining whether an isolated wetland is protected by the Clean Water Act should remain in place, or whether a less inclusive standard should replace it.
The supermajority right-wing Court could reduce the U.S. Environmental Protection Agency’s regulatory power over wetlands, much like it did over greenhouse gases earlier this year.
The Court is hearing Sackett v. Environmental Protection Agency, a case brought by an Idaho couple in a protracted legal battle with the EPA since 2007. The couple, Michael and Chantell Sackett, attempted to develop land determined to be a wetland protected by the Clean Water Act without first getting the necessary permits from the federal government.
The Sacketts bought the property near Priest Lake, Idaho in 2004 and began to build a home on the property after receiving local permits. But later that year, the EPA sent them an administrative compliance order telling them the construction violated the Clean Water Act because their lot contains wetlands that qualify as regulated “navigable waters.” They faced a $40,000 a day fine if they refused to restore the property to its original state.
The couple filed suit, challenging the EPA’s authority to regulate their land under the Clean Water Act. The case eventually made its way to the Supreme Court in 2012, with the Court unanimously finding the couple could litigate the order in federal court.
The case returned to lower courts, and a federal court in Idaho ruled in favor of the EPA. A federal appeals court upheld the decision.
The Sacketts’ case is now back at the Supreme Court, but this time the couple is asking it to revisit, and potentially repeal, the rationale used to determine whether a wetland falls under the protection of the Clean Water Act, the “significant nexus” test.
‘WATERS OF THE UNITED STATES’
The Clean Water Act regulates the discharge of pollutants into what the law specifies as “waters of the United States.” The ambiguous phrase has fueled decades of litigation over which waterways fit that classification.
In 1986, the EPA adopted a definition of WOTUS that included seven broad categories of waterways, including all wetlands. A 2001 Supreme Court decision limited the federal government’s jurisdiction over wetlands with no apparent surface water connection to perennial rivers, streams, estuaries or the ocean, also called isolated wetlands.
A 2006 Supreme Court decision in a separate court case, Rapanos v. United States, further limited the Clean Water Act’s jurisdiction over wetlands.
In a fractured decision, Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts decided the term “waters of the United States” covered “relatively permanent, standing or continuously flowing bodies of water” that connect to traditional navigable waters and wetlands with a continuous surface connection to traditional navigable waters. The Justices noted that their decision did not necessarily exclude streams, rivers or lakes that might dry up in extraordinary circumstances, like a drought, or seasonal rivers.
Justice Anthony Kennedy concurred with the four Justices, but determined “waters of the United States” included wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact of that could reasonably be so made.”
The Obama administration attempted to expand the WOTUS definition to include isolated wetlands and temporary waterways known as ephemeral streams, but a coalition of states, including Indiana, successfully sued to stop the rule from being implemented. The Obama WOTUS definition was formally repealed by the Trump administration in 2019.
The Trump administration attempted to limit the WOTUS definition to just four categories of waterways in 2020: territorial seas and navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters. A federal judge struck down the rule in 2021, returning the country to the 1986 seven-category WOTUS definition.
SACKETTS RETURN TO THE SUPREME COURT
The Sacketts want the majority right-wing Supreme Court to repeal the “significant nexus” test in the Rapanos ruling and limit Clean Water Act jurisdiction to “relatively permanent, standing or continuously flowing bodies of water” as determined by the Court’s conservatives.
This could exclude 51% or more of the nation’s wetlands from Clean Water Act protection.
“This Court can readily end the years of confusion and conflict over the scope of the Clean Water Act by adopting the Rapanos plurality rule of continuous surface water connection. The Sacketts’ petition provides the Court with the right vehicle for making that happen,” the Sacketts’ attorneys wrote. “[T]his Court should act now because waiting for Congress has not resulted in any legislative fix in the 15 years since Rapanos was decided.”
The repeal of the “significant nexus” test is supported by those who, like the Sacketts, would gain financially from the decision, like farmers, land developers and other industries.
The American Farm Bureau Federation led a group of 14 agricultural organizations in joining the case on the side of the Sacketts, arguing that the Clean Water Act allows agencies to interfere with land use and traditional local authority and that the Court should act to stop agencies from “manipulating” phrases like “significant nexus” that are not found in the text of the law.
“The meaning of WOTUS at the margins is particularly fraught for farmers and ranchers. They know that navigable rivers and their tributaries with permanent flow are protected by federal law. But they routinely contend with far more ambiguous features, such as low spots in fields, ditches, drains, stock watering and storage ponds, seasonal features that are often dry, or ephemeral washes that are almost always dry,” attorneys for the agricultural groups wrote in an amicus brief. “Farmers and ranchers should not have to guess whether such features, so far removed from any reasonable concept of navigable waters, are WOTUS. Current and proposed rules, however, lack clear guidance and may well reach such features.”
The Sacketts’ case is also supported by the National Association of Home Builders, U.S. Chamber of Commerce and other trade organizations, as well as by the attorneys general of 20 states, including Indiana.
SCIENTIFIC BASIS FOR BROAD “WOTUS” DEFINITION
Wetlands serve important water management functions. They trap and slowly release water, filtering it through sediment and vegetation before it reaches surface and groundwater systems. Wetlands can reduce or prevent flooding and are home to many species of wildlife.
Much of what wetlands do happens underground and affects downstream waterways to which they connect, likes streams and rivers.
The EPA undertook a major study in 2015 of the connectivity of wetlands, finding that wetlands, even isolated wetlands, provide hydrologic, chemical and biological functions that affect major waterways that are less legally ambiguous to the Court.
“The science is clear that protecting upstream wetlands and tributaries is critical for protecting downstream lakes and rivers, including the Great Lakes. We all depend on safe clean water for drinking, fishing and recreation,” said Scott Strand, senior attorney for the Environmental Law and Policy Center. “The case the Justices are considering could take away much of the federal government’s ability to protect wetlands and river and stream beds that are sometimes dry part of the year. We know today that waterbodies are more connected to each other than we might have once imagined.”
Other groups, like Earthjustice and Sierra Club, also oppose the potential weakening of Clean Water Act protections that may come about as a result of the Supreme Court choosing to take up the case.
“The Clean Water Act is one the most successful, effective and widely supported pieces of legislation ever enacted, and weakening its protections would be catastrophic. The Supreme Court should not be revisiting its prior decisions in a way that hamstrings our government's ability to protect the health of people and our environment. That’s especially true now, when EPA is in the midst of developing new regulations to clarify the reach of the Clean Water Act,” said Earthjustice senior vice president of program Sam Sankar.
LOSING INDIANA’S WETLANDS
A weakening of federal protections for wetlands would further imperil the remaining wetlands in the state of Indiana.
State lawmakers moved to provide state protections for isolated wetlands after the 2001 Supreme Court decision that limited the federal government’s jurisdiction over isolated wetlands.
The 2003 Isolated Wetlands Law set up a permitting process that would allow the development of wetlands as long as the area disturbed was offset by creating more wetlands or paying IDNR to do it. The law provided numerous exemptions, like wetlands that existed as incidental features in agricultural lands, ditches and other areas.
In 2021, members of the Indiana Builders Association who also serve as state senators introduced legislation seeking to remove all state protections for isolated wetlands.
Sen. Chris Garten serves as an IBA board member and is founder and president of a countertop fabrication company in Jeffersonville; Sen. Linda Rogers is a former IBA president and owner of a home construction company in Granger; and Sen. Mark Messmer is an IBA member and co-owner of a plumbing, heating and cooling company.
Senate Enrolled Act 389 was opposed by the Indiana Department of Natural Resources, Indiana Department of Environmental Management, multiple water resource management agencies and environmental organizations, and even Gov. Eric Holcomb expressed concerns about the bill.
The severity of the bill was pared down as it made its way through both houses of the Indiana General Assembly and to the governor’s desk.
The 800,000 acres of remaining wetlands in Indiana are designated as one of three classes, depending on its hydrologic function and how much wildlife it supports.
Class I wetlands are wetlands where at least 50% of the land has been disturbed or affected by human activity or development and is determined to support “minimal” wildlife or hydrologic function. Class III wetlands are minimally disturbed by human activity and support “more than minimal” wildlife or hydrologic functions. Class II wetlands were defined as not being either Class I or Class III.
According to IDEM, 425,000 acres of wetlands in Indiana are Class I; 250,000 are Class II; and between 10,000 and 20,000 acres are Class III.
SEA 389 eliminated protections for Class I wetlands and weakened protections for Class II wetlands, which were redefined as wetlands that support “moderate habitats or hydrological functions, including an isolated wetland that is dominated by native species but is generally without the presence of or habitat for rare, threatened, or endangered species.”
Class III wetlands would remain mostly protected by federal law and would require permits from IDEM for development.
The Sackett case could ultimately remove the remaining protections for almost all of the remaining protected wetlands.
The case is expected to be decided by early 2023.