The case was brought before the Supreme Court by an Idaho couple, Michael and Chantell Sackett, who purchased property near Priest Lake, Idaho to build a house. The Sacketts began backfilling the property with dirt and rocks until the EPA ordered them to stop, citing the wetlands located on the Sacketts’ property that fed into Priest Lake. The EPA ordered the Sacketts to begin restoration of the site and threatened fines of $40,000 a day if they failed to do so.
While the court ruled 9-0 that the EPA had overstepped its bounds in the Sackett’s case, justices were split 5-4 in just how much to curb the EPA’s authority over American wetlands as a whole. Central to the issue are definitions of “the waters of the United States” and “adjacent wetlands,” as defined in the act, which have come into question in recent years.
“Because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties,” Justice Samuel Alito wrote in his opinion.
Previously, the EPA considered a wetland to be protected if it had “a ‘significant nexus’ between the wetland and adjacent navigable waters.” That nexus existed if the wetland “significantly affect(s) the chemical, physical, and biological integrity” of the body of water,” the ruling says.
Writing for the majority, Alito substituted a new framework, saying that that the Clean Water Act extends only to those wetlands “with a continuous surface connection” to waters of the United States, defined as “relatively permanent” bodies of water, like rivers, streams, and lakes.
The framework eliminates most of America’s wetlands, which include bogs, fens, marshes, and other habitats.
“That kind of thinking doesn’t protect this wetland,” said Ken Moran, a retired Air Force veteran and volunteer with the Beavercreek Wetlands Association said.
Moran and other volunteers spend their mornings three days a week building boardwalks through Dave Nolin Reserve and other Beavercreek wetlands for Miami Valley residents and nature enthusiasts to enjoy. The Dave Nolin Reserve, where Moran and volunteers were interviewed for this article, doesn’t pass the Supreme Court’s continuous surface connection test for federal protections.
“Wetlands are as rare and precious as rainforests and coral reefs. And we have one right here in Dayton,” Moran said.
In the continental United States, approximately 53 percent of wetland area that existed prior to the Revolutionary War has been lost to development, agriculture, pollution, erosion or other factors, according to the Fish and Wildlife Service, and continues to disappear by 50,000 acres annually.
“In Ohio alone, since the 1700s, 90% of our wetlands are gone,” said Jacki Mayer, Executive Director of the Beavercreek Wetlands Association. “As a result, that’s a lot of habitat loss.”
In a letter to its members, the Society of Wetland Scientists said the continual surface test has no scientific basis, and “is a bad path forward.”
“While the opinion focused on wetlands, we think that it will be interpreted that any ephemeral body of water—wetland or stream—could now be considered non-jurisdictional,” the Society wrote. “This is because the Court defined ‘waters’ as ‘only those relatively permanent, standing or continuously flowing bodies of waters,’ which would not encompass ephemeral streams.”
Under the new Supreme Court ruling, Mayer estimated upwards of 2400 acres managed by the BCWA would lose federal protections.
The Beavercreek Wetlands Association manages wetland nature preserves and park land from north of Fairborn to just south of US-35, building boardwalks and trails to allow local residents to enjoy the habitats in their proverbial backyard. Oftentimes, Mayer said, people don’t even know the wetlands are there.
“Every time I take someone for a walk in the wetland, they’re shocked. They’re shocked at the flowers that exist in the wetland, the birds, different animals, and just the kind of undisturbed beauty that exists,” she said.
In addition to being one of the most biologically productive ecosystems in the world, wetlands are essential for providing clean drinking water. The soil and plant life offer a natural filtration system, Mayer said.
“Wetlands are the kidneys of the world,” Mayer said. “it holds on to carbon and all the other toxins, so that by the time it gets to the aquifer, it’s clean water.
Wetlands also naturally absorb a lot of water, and as such are useful to prevent flooding.
“The water’s got to go somewhere,” she said. “If you then take away this sponge, these kidneys that filter all of that and can hold on to it, it’s headed towards your basement.”
Exactly how this decision will affect conservation work in the future is unclear. While federal regulations provide much of the guidelines for conserving natural resources, local governments and individuals play a large part, Mayer said. For individual property owners, conservation easements, which prevent development in perpetuity for all or part of a certain parcel, is still the “gold standard,” she said.
“We don’t want to tell municipalities, ‘You have to stop development at all costs.’ We know that’s not realistic. But we want people to be thoughtful and if more people understood the multiple benefits of having the wetlands, then the more they know, the more they’ll care,” Mayer said.
Fairborn land trust B-W Greenway has secured conservation easements forover 700 acres since its inception, the most recent being a four-acre wetland given to the city of Fairborn last month. Located southwest of the intersection of State Route 235 and I-675, the newest Fairborn wetland connects to Pearl’s Fen and Oakes Quarry Park, both popular hiking spots in the area.
“The whole motivation behind the Clean Water Act was that different states have different sets of rules,” said BW Greenway founder Bob Jurick. “Which means the waterways that cross state boundaries could be protected in different levels in different states. One of the lack of understanding is that our natural species, birds, animals, bees, all of these need habitats and habitats don’t necessarily pay attention to state or jurisdictional boundaries.”
Conservative Justice Brett Kavanaugh joined the three liberal judges in dissenting on this part of the decision, saying the continuous surface connection test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedent.”
“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,” Kavanaugh said.
Justice Elena Kagan additionally penned her own concurring opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, saying that with Alito’s opinion, the court risked overstepping its bounds.
“Congress wrote the statute it meant to,” Kagan said. “A court may not rewrite Congress’s plain instructions because they go further than preferred.”
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