The Supreme Court issued a disastrous ruling recently that eliminates federal safeguards for a broad swath of wetlands and waterways critical to restoring the Chesapeake Bay, its tributaries, and other damaged water bodies across the country.
The May 25 decision in Sackett v. EPA says the Clean Water Act only protects wetlands and other waters adjacent to streams, rivers, and other "navigable waters" that are "indistinguishable" from those waters because of a "continuous surface connection" between the wetlands and the navigable waters.
As a result, thousands of isolated wetlands unique to our region and integral to Bay restoration, called Delmarva Bays and pocosins, no longer qualify for protection under the Supreme Court's narrow new definition of "waters of the United States" covered by the Clean Water Act.
More than 118,000 linear miles of small streams in Delaware, Maryland, Pennsylvania, Virginia, and West Virginia that only flow during certain seasons or only after it snows or rains may have lost federal protection, too. That's roughly 56 percent of stream miles in those states, according to U.S. Geological Survey data.
This is concerning because wetlands perform an array of valuable functions. They help recharge groundwater, purify downstream waters by trapping pollutants, and act as "carbon sinks" by storing planet-warming carbon dioxide in their plants and soils.
Wetlands also protect low-lying communities by absorbing flood waters and storm surges and provide essential habitat for migratory birds, fish, and other aquatic species that are central to the Bay region's outdoor recreation, tourism, and seafood industries.
The Supreme Court's ruling is complicated, with far-reaching implications that lawyers and regulators are only beginning to analyze. But it's not too soon to draw a few conclusions about the decision and what it means for the Bay and its tributaries.
1. The new test ignores science.
The court struck down 45 years of wetlands science and agency expertise to give developers, builders, farm groups, and landowners like Michael and Chantell Sackett what they've wanted for years—a simple "eyeball" test to determine whether or not a waterbody is a protected wetland.
The Clean Water Act requires anyone who wants to drain, fill in, or build on wetlands under its jurisdiction to first obtain a permit from the U.S. Army Corps of Engineers. Permit-holders are often required to restore or create wetlands in another location to make up for the wetlands they destroy. They may also be required to make changes in the project's scope or configuration. Wetlands and waterways outside the scope of the law, however, are fair game.
The eyeball test may make it easier to say which wetlands are covered by the Clean Water Act. But science tells us that identifying a wetland is not that simple. The ruling ignores the long-standing scientific consensus that wetlands and small streams in a watershed are connected, even if only underground, and contribute to the health of the watershed regardless of their size, location, and how often their waters flow.
2. States will have to take the lead.
The Clean Water Act requires states to protect water quality at least as much as the federal government does, essentially setting the floor for state regulations. States may establish more stringent protections, but they cannot provide less.
This decision eliminates the floor for many valuable wetlands and opens a trap door instead. It will be up to individual states to fill the gap, and many will not. Anyone living in or downstream of those states will suffer the consequences when wetlands are sacrificed in favor of pipelines, roads, land development, and other construction projects.
We are fortunate that the three main watershed states—Maryland, Pennsylvania, and Virginia—have stronger protections than the new standard. So does New York, which is also in the watershed.
But having tough laws on the books is only half the equation. Loopholes, waivers, uneven enforcement, budgetary constraints, and different priorities from one governor or legislative majority to the next can all limit their effectiveness. It will be up to Maryland, Pennsylvania, and Virginia to ensure their wetlands laws provide the intended protections on the ground.
West Virginia and Delaware, however, follow the federal definition of protected waterways. If neither state steps in to safeguard wetlands that the federal government no longer does, thousands of Delmarva Bays and other isolated wetlands and thousands of small stream miles in both states could be lost. As one of the most flood-prone states in the country, West Virginia can ill afford to lose more wetlands. With Delmarva Bays covering most of the state, neither can Delaware.
3. It could affect other sources of pollution and groundwater, too.
Although the Sackett case focuses on wetlands, its reading of the Clean Water Act's jurisdiction affects all programs the law governs, including permit requirements for factories, wastewater treatment plants, and other single "point sources" of pollution.
It is possible a polluter could fill in a pond or mountain stream in Pennsylvania or West Virginia that is dry during the summer or dump contaminated water into a Delmarva Bay or a pocosin in Delaware, Maryland, or Virginia without seeking a federal permit. People living nearby who fish, swim, or enjoy other activities in those waters could be exposed to pollution, lose recreational opportunities, or even be forced to leave the area as a result.
Groundwater used for drinking water could also suffer. If polluters are allowed to discharge into wetlands that have lost federal protection and a state's laws are no stronger than federal law, pollutants could seep into the underlying aquifer. If the aquifer is used for drinking water or is connected to a surface water used for drinking water, those pollutants could make their way into the community's water supply and threaten people's health.
4. The decision confuses more than it clarifies.
While all of the justices agreed that the lower court had used the wrong test to determine what waters are subject to federal law, Justices Kavanaugh, Sotomayor, Kagan, and Jackson strongly disagreed with Justice Alito's interpretation of the law. They recognized the decision would undo decades of wetlands law and practice and that protection of the Chesapeake Bay might be less effective as a result.
The majority held that the Clean Water Act only covers wetlands adjacent to navigable waters that are "indistinguishable" from those waters because the wetlands have a "continuous surface connection" to them.
But one requirement for asserting jurisdiction over adjacent wetlands is establishing that the waterbody the wetlands are adjacent to qualifies as "waters of the United States." The court defines waters of the United States as "a relatively permanent body of water connected to traditional interstate navigable waters."
What the court means by "relatively" and how a "relatively permanent" waterbody can have a "continuous" connection to anything, the majority fails to say.
The Biden administration issued an interim WOTUS rule with protections for isolated wetlands and small streams in January 2023. The administration was planning to produce a permanent definition of covered waters in November 2023 that would build on the definition it issued in January. But with nothing left to build on and its jurisdiction severely constrained, the administration will have to go back to the drawing board.
U.S. Environmental Protection Agency (EPA) Administrator Michael Regan expressed disappointment in the ruling but did not address how the agency plans to move forward in his May 25 statement. President Biden pledged that the administration will "use every legal authority we have to protection our Nation's waters for the people and communities that depend on them" in the White House response.
But don't count on whatever the Biden administration eventually proposes to settle anything. Like the Sackett decision, the administration's next WOTUS rule is bound to spur yet another round of litigation.
CBF will engage with EPA and the states as they navigate the post-Sackett regulatory landscape. CBF's goal is to ensure that the Clean Water Act covers all non-tidal wetlands and other waters that protect the Chesapeake Bay and make the watershed unique.
