For over 50 years, the Clean Water Act (CWA) has been critical in protecting the United States’ waters. The CWA has protected wetlands and streams from ill-planned development, pollution and degradation to ensure our waters are safe for drinking, fishing, swimming and as a habitat for an array of beautiful wildlife.
However, since the Act’s enactment in 1972, the CWA has been under steady attack from would-be polluters all around the country (above all fossil fuel companies, industrial farmers and large construction businesses) who tried for decades to alter the meaning of five little — but incredibly important—words: waters of the United States. On May 25, 2023, the United States Supreme Court handed these special interests a huge win in the Sackett v. EPA decision.
In 2004, Chantell and Michael Sackett bought a wet, vacant piece of land totaling two-thirds of an acre in the scenic wilderness about 500 feet from Priest Lake, Idaho for $23,000. In 2007, the Sacketts - who own a small excavation company – began building a home on the lot. However, three days after they began clearing the property and adding fill, the EPA acted on a complaint, showing up to the site and stopping work until the couple could produce a permit for filling in wetlands.
Generally, before undertaking any development, grading or soil movement, a property owner typically must hire an environmental consultant to conduct a wetlands delineation study and submit it to the Army Corps to render a determination on the basis of delineation. The Sacketts knew early on that their property contained wetlands (1); their own wetland consultant they hired told them so in May 2007, just after EPA first visited the property but months before the agency issued the compliance order. The EPA ordered Sackett to restore the site, threatening penalties of over $40,000 per day.
In the earlier 2012 SCOTUS case, the justices ruled 9-0 that the Sacketts could bring a legal challenge against the EPA enforcement actions that blocked the construction of their home. During the litigation, the EPA removed its compliance order. Despite the EPA’s intent to abandon its enforcement action, the U.S. Court of Appeals for the Ninth Circuit held that the case was not moot and that the property’s wetlands fell under the “significant nexus” test, specifically, “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Sackett v. Environmental Protection Agency, 2021 WL 3611779 (9th Cir. Aug. 16, 2021).
After that decision in 2021, the Sacketts filed a petition for a writ of certiorari, asking the United States Supreme Court to decide whether their lot was regulated under the CWA. In its decision on May 25, 2023, the Supreme Court significantly reduced the definition of waters of the United States from its earlier legal theory by holding that under the CWA, the word “waters” refers only to geographical features that are described as “streams, rivers, oceans, and lakes” and adjacent wetlands that are indistinguishable from those bodies of water due to a “continuous surface connection” to those larger, regulated bodies of water. There is no such connection on the Sacketts’ property.
Where are we now?
Our environmental protection should not be able to change on a whim. While the term “waters of the United States” has been a central component of the Clean Water Act, the term has also been under constant attack and has frequently changed based on the political landscape of our country. The Trump administration, for example, proposed a change on how the Clean Water Act applies to wetlands separated from larger waterways by man-made barriers and leaving vulnerable any wetlands that do not have a relatively permanent surface water connection to larger waterways.
We need stronger protections for wetlands now more than ever; however, with the latest Sackett ruling, millions of acres are left without protection. Our friends at Earthjustice believe the decision could affect as many as half of the 118 million acres of wetlands in the United States. Translating that national statistic into local impact is complicated by many factors, particularly on our dynamic coastal region, but given the increasing development pressure statewide one is left worrying how much of the 4.6 million acres of wetlands (nearly one quarter of South Carolina) this ruling is jeopardizing.
This matters because wetlands are essential everywhere, but particularly in a coastal state like ours. They store water to prevent and mitigate floods, sequester carbon from the atmosphere through plant photosynthesis, act as filters to improve water quality by removing sediments and other pollutants before they reach larger bodies of water, support recreation, forestry, food production and much more. With the impending challenges of climate change, the fate of existing wetlands is a factor in predicting carbon emissions. With wetlands holding large amounts of carbon—an estimated 225 billion metric tons of carbon globally —wetland loss means not only the loss of that particular carbon storage, but also that the carbon stored in that wetland will be released. As it relates to South Carolina, coastal wetlands sequester carbon up to 55 times faster than tropical rainforests (5). Moreover, every destroyed wetland means more flood waters. With the threats from sea level rise becoming more apparent each day, South Carolinians must take action to protect our coastal state and resources. Besides, we paved over enough Paradise already!
What can I do?
State and local protections for wetlands are ever more critical after the Sackett ruling. Citizens who care about the environment must reach out to their local leaders and ask for stronger protections for our wetlands. Local governments have the authority to establish regulations that exceed state and federal standards for wetland protections. Call your county representatives and ask them to enact local rules requiring landowners and developers to avoid wetlands with their projects. Reach out to your state representatives and ask them to encapsulate stronger wetland protections into South Carolina’s laws.