This week, the federal Environmental Protection Agency released new rules for the regulation of many of the wetlands, streams and seasonal creeks throughout the United States in order to ensure conformity with a recent U.S. Supreme Court decision on the Clean Water Act.
In what is known as the Sackett case, the court significantly weakened the protections that were enacted by a bipartisan Congress in 1972 with the goal of ensuring the waters of the United States would all be “fishable, swimmable and drinkable.”
In response to these new regulation, California Trout Executive Director Curtis Knight released the following statement.
“At a time when the best available science points to a clear connection between the health of all waters – whether above or below ground, seasonal or perennial – these new regulations are particularly disappointing,” Knight said. “Water is essential for both people and fish to survive and thrive, and none of us can do that if our rivers, lakes and streams are polluted due to weak regulations. For the sake of every Californian and for the fish that depend on our waterways for survival, we hope that regulators and legislators in California will look for opportunities to better protect our water under these weakened federal regulations.”
Information on the Supreme Court’s decision
According to the U.S. Supreme Court file, “Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into ‘the waters of the United States.’ The EPA ordered the Sacketts to restore the site, threatening penalties of more than $40,000 per day. The EPA classified the wetlands on the Sacketts’ lot as ‘waters of the United States’ because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The Sacketts sued, alleging that their property was not ‘waters of the United States.’ The District Court entered summary judgment for the EPA. The Ninth Circuit affirmed, holding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts’ wetlands satisfy that standard … The uncertain meaning of ‘the waters of the United States’ has been a persistent problem, sparking decades of agency action and litigation. Resolving the CWA’s applicability to wetlands requires a review of the history surrounding the interpretation of that phrase.
According to the court file, Associate Justice Brett M. Kavanaugh concurred with the court’s ultimate decision, but he also offered his opinion and concerns regarding the court’s reinterpretation of the Clean Water Act.
“I write separately because I respectfully disagree with the court’s new test for assessing when wetlands are covered by the Clean Water Act,” Kavanaugh wrote. “The court concludes that wetlands are covered by the act only when the wetlands have a ‘continuous surface connection’ to waters of the United States — that is, when the wetlands are ‘adjoining’ covered waters. In my view, the court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice and from this court’s precedents. The court’s test narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands. But ‘adjacent’ and ‘adjoining’ have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both those wetlands contiguous to or bordering a covered water and wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the act’s coverage of wetlands to only adjoining 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. Therefore, I respectfully concur only in the Court’s judgment.
“The difference between ‘adjacent’ and ‘adjoining’ in this context is not merely semantic or academic. The court’s rewriting of ‘adjacent’; to mean ‘adjoining’ will matter a great deal in the real world. In particular, the court’s new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States.
“For example, the Mississippi River features an extensive levee system to prevent flooding. Under the court’s ‘continuous surface connection’ test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project. Likewise, federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries. Those are just two of many examples of how the Court’s overly narrow view of the Clean Water Act will have concrete impact.
“In sum, I agree with the court’s decision not to adopt the ‘significant nexus’ test for adjacent wetlands. I respectfully disagree, however, with the court’s new ‘continuous surface connection’ test. In my view, the court’s new test is overly narrow and inconsistent with the act’s coverage of adjacent wetlands.”