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Supreme Court could upend wetland and water protections in the US

Waterfront homes under construction in Rockport, Texas, in March 2017, five months before Hurricane Harvey hit the region. Wetlands in the foreground are located in Goose Island State Park, which was closed for repairs after the hurricane.

Posted on April 5, 2023

A forthcoming Supreme Court decision will decide if wetlands are entitled to federal protections under the 1972 Clean Water Act, a ruling with implications for relatively unmitigated development industries and the progression of climate change and its consequent disasters.

Sackett v. Environmental Protection Agency (EPA) positions construction against the needs of the environment, and like other environmental SCOTUS decisions before it, the stakes are high. Due to the impending climate change tipping point, policymakers have just seven years to keep the planet’s temperature from rising more than 1.5 degrees Celsius.

For a case with vast, almost incalculable repercussions, the origins of Sackett v. EPA are minute: In 2007, Michael and Chantell Sackett began construction on the edge of Idaho’s Priest Lake, where they wanted to build a second home. The Sacketts obtained local construction permits, and after filling in the land with gravel and sand, the EPA ordered they stop construction and restore the parcel, given that the lake and the land adjacent were worthy of Clean Water Act protections.

Instead, the couple sued the EPA, kicking off a legal battle that has lasted over a decade. At the center of the legal argument heard in October of last year is what bodies of water are considered “Waters of the United States” (WOTUS) and held under the Clean Water Act. In reviewing the WOTUS rule, the justices are forced to look backward to Rapanos v. United States, a 2006 SCOTUS case that resulted in two different legal tests used to determine Clean Water Act jurisdiction. As the Sacketts’ case wound its way through the court system, three different presidential administrations developed subsequent and opposite federal WOTUS rules based on the more liberal or conservative jurisdictional tests originating from that 2006 decision.

Though researchers have demanded greater wetlands protections for years, highlighting their critical importance and fast destruction worldwide, it’s likely that the narrow test and federal rulemaking will be the court’s main consideration. Held in the balance is the integrity of U.S. wetlands, long considered by ecologists as the “kidneys” of the environment, filtering water, providing habitats, and drawing down carbon from the atmosphere.

Out of thousands of petitions each year, the Supreme Court chooses about 1% of cases for which to hear oral arguments. Deborah Sivas, the director of the Environmental Law Clinic at Stanford University, said that “ideological”-driven cases like Sackett provide an opportunity for the court to curtail federal regulations put in place decades ago to protect the environment. This was the case last year in a decision to bludgeon the EPA’s ability to regulate greenhouse gas emissions.

“The more that [the justices] signaled that they’re going to really pare back federal regulation … the more it opens the playing field for a free for all, especially at the state level where there’s no real regulation going on,” Sivas said. And as the Supreme Court undercuts the reach of federal laws, the most vulnerable poor and BIPOC communities will feel the impacts first.

If the court decides in favor of the Sacketts, about half of all wetlands in the contiguous U.S. would no longer be protected by the Clean Water Act.

Part of the disconnect between these two WOTUS tests is that, while based in the law, it’s unclear whether they incorporate all of the complexities of wetland ecology. The more liberal of the tests, which the Biden administration is currently revising, finds that jurisdictional waters are those with “a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The more constrictive test, written by conservative former Justice Antonin Scalia, said that a WOTUS-entitled wetland “has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

A wetland is an area that’s saturated with water, and while there are five main types of wetlands, they go by many names: estuaries, lakes, bogs, or others. Wetlands can be covered permanently in water or for just part of the year, but the water steeped deep within the soil is a critical part of its definition and function, as wetland soil contains little oxygen. This quality makes it an indispensable part of the ecosystem.

Jon Devine, the director of federal water policy at the Natural Resources Defense Council, said that he hopes the court will understand Congress’ clear intention behind the Clean Water Act: to protect bodies of water in the U.S.

What the court likely won’t consider is a central concern for advocates: the ongoing loss of wetlands across the world. Between 1970 and 2015, 35% of wetlands were destroyed across the globe. The destruction of wetlands is occurring three times faster than that of forests, which are often heralded as an ecological lynchpin to sequestering carbon. In the U.S., the wetland loss rate increased 140% between 2004 and 2009 from the previous period, 1998-2004. Between 1996 and 2016, 640,000 acres of wetlands were lost, mostly to development, according to the National Oceanic and Atmospheric Administration. More than 95% of coastal wetlands in Californian have been destroyed, also largely because of development.

That loss brings the loss of what wetlands can do for the environment, including humans. Wetlands sequester carbon—some wetlands even store about twice as much as forests. They filter water for the entire ecosystem, prevent erosion, and provide habitats for thousands of species. As one of the most productive ecosystems in the world, wetlands provide “values that no other ecosystem can,” according to the EPA. Federal scientists are now studying wetlands as a key way to mitigate climate change and the impacts of a warming planet.

At the same time, over the last three decades, wetlands faced their most significant enemy in construction and development, dramatically worsening the effects of climate change. The importance of wetlands is ignored by government agencies, which allows development industries to further projects in floodplains and flood prone areas. 

By ecological design, wetlands are naturally located along floodplains and absorb water during storms. This is why wetlands play a role in protecting communities against floods and also why their destruction is connected with greater incidences of flood-related harms.

According to a 2021 opinion article by the Houston Chronicle editorial board, Houston and much of the Gulf Coast were built on wetlands with permission from state and federal governments and regulatory agencies. The irony—and potential for environmental and community harm—is that approval for a new development on wetlands and in a floodplain came from the Texas General Land Office. The “shortsighted” development project in question was funded in part with federal disaster aid related to Hurricane Harvey, which touched down in 2017. In other regions, like New York’s Staten Island, environmental municipal agencies have even said that climate change considerations fall “outside the scope” of their powers.

Federal disaster agencies do not currently use predicted impacts of climate change—the increased frequency and intensity of storms and storm surges—to map flood risk. Flooding is the most common and costly disaster, and across the country, as wetlands face their own destruction, people are moving into floodplains more frequently than they’re leaving them.

Waiting in the wings of the SCOTUS decision on Sackett v. EPA are real estate, construction, and development industries. In Staten Island, big box stores are trying to build a parking lot and shopping center that would destroy the remaining tidal and freshwater wetlands in parts of the community where residents are majority BIPOC, according to Gabriella Velardi-Ward, founder of Staten Island Coalition For Wetlands and Forests.

This is just one example of what many communities across the country are experiencing. In Harris County, Texas, development and suburban sprawl on the outskirts of the city threatens to disappear wetlands and prairies that have historically held stormwater, said Kristen Schlemmer, the legal director and waterkeeper at the Bayou City Waterkeeper.

The U.S. will continue to build homes and shopping centers—a housing and economic crisis demands it. The government-backed loan corporation Freddie Mac estimates a 3.8 million unit housing supply shortage, though according to The Atlantic’s Annie Lowrey, there is no national “policy vision of how to make our biggest, most productive places affordable for all, and no plan to get there.” The larger question is how this so-called development will take place: by threatening its own structural integrity by building on wetlands, or respecting the parts of the ecosystem that can’t be replicated and that provide environmental protection for free?

The Supreme Court’s ruling in Sackett v. EPA is expected in June at the latest.


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