Sarah King is a law student in the HLS Food Law & Policy Clinic and a guest contributor to this blog.
This summer, the Supreme Court decided a case concerning the reach of the Clean Water Act, which generally prohibits the discharge of pollutants into “navigable waters,” drawing a range of reactions from environmental and agricultural groups.
This case began in 2004, when Michael and Chantell Sackett bought a small lot of land in Idaho and decided to build a small home on the property. To do so, “they began backfilling their property with dirt and rocks.” Shortly thereafter, the EPA sent them “a compliance order informing them that their backfilling violated the CWA because their property contained protected wetlands.” The EPA told the Sacketts that if they did not comply with their “Restoration Work Plan,” they would be faced with penalties of $40,000 per day. At the time, the Court says that the EPA was asserting jurisdiction “over wetlands ‘adjacent’ to non-navigable tributaries when those wetlands had ‘a significant nexus to a traditional navigable water.’” The EPA had reasoned that the wetlands on the Sacketts’ land were “adjacent to” an “unnamed tributary” that feeds into a creek, which feeds into Priest Lake, which the EPA designated as traditionally navigable. “To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as ‘similarly situated.’ According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States.’”
The Court ruled in favor of the Sacketts, holding that in the Clean Water Act, the word “‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’… Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” Therefore, the wetlands on the Sacketts’ property was not subject to the jurisdiction of the EPA.
This decision limiting the reach of the Clean Water Act has generated significant concern from environmental justice groups because of the reduction in protection for wetlands, while others are calling the decision a win for farmers and ranchers, because it provides clarity and reinforces property rights. The CEO of National Association of State Departments of Agriculture has said that “The Supreme Court’s unanimous decision in Sackett v. EPA today comes as welcome news to farmers, landowners and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades.” Meanwhile, environmental groups are worried about the “health of the nation’s waterways,” This should not be misconstrued as an implication that farming and conservation are opposing practices. In fact, there are ways to fight climate change through farming.
On October 18th, which was the 51st anniversary of the Clean Water Act, the Senate Environment and Public Works Committee held a hearing to examine the impact of the Sackett decision. They heard from a panel consisting of Mažeika Patricio Sulliván, Ph.D., who is the Director of the Baruch Institute of Coastal Ecology and Forest Science at Clemson University; Kourtney Revels, Water Justice Organizer at Bayou City Waterkeepers; and Susan Bodine, a Partner at Earth & Water Law.
In his introductory remarks, Chairman Senator Carper (D – Delaware) said that “while we don’t yet know the full extent of the damage from the Sackett decision, scientists estimate that more than half of our nation’s wetlands no longer have Clean Water Act protection.” He said that “the Sackett decision increased the burden of wetlands protections for states. Currently, 25 states do not have laws in lieu of the Clean Water Act to protect their wetlands,” and expressed concerns about having a “patchwork” of laws and inconsistency across the country.
Ranking Minority Member Senator Capito (R – West Virginia) described the Sackett decision as a “victory for the cause of cooperative federalism enshrined in the Clean Water Act.” She said that it was “misleading” to describe the waters left out of the Clean Water Act as “unprotected” because it does a disservice to state and local governments who know their waters best.
Dr. Sulliván testified that “fisheries, flood control, drought mitigation, carbon storage, and biodiversity” are reasons why wetlands are important, and “the United States has already lost vast amounts of wetlands.” He testified that there is also the potential for significant economic damage, because “6.59 million hectares of wetlands outside of floodplains provide $673 billion per year” to the economy. This valuation is based on water supply, water purification, climate regulation, flood control, and recreation.
Susan Bodine did not share the concern of Dr. Sullivan, testifying that, based on legislative history, “The Sackett case hasn’t removed any Clean Water Act jurisdiction, it reaffirmed its original scope.” She also said that “many wetlands are still going to be protected by other programs” such as those through the Department of Agriculture and others.
Dr. Sulliván responded to this by saying that “a lot of the programs that Ms. Bodine mentioned, I agree those are excellent programs, but they are not a comprehensive national legislation that sets the bar for protection, many of those are actually programs that are restoring, not conserving. And we know, from decades of research, that restoration, although very important, does not equal conservation.” Throughout the hearing, he repeated that the Sackett decision was not in line with science.
Senator Cramer (R – North Dakota) pointed out that Dr. Sullivan and Ms. Bodine were “arguing two different things, the science and the law.” Chairman Carper said that while he respects the law, “we can’t pass laws to tell water how to flow.”
To close the hearing, Chairman Carper asked the witnesses if they saw any areas where there might be hope for consensus. Ms. Bodine suggested looking at the infrastructure model rather than the regulatory model, based on the past success of the committee in the infrastructure area. Dr. Sulliván reiterated that we should be valuing science and suggested that instead of seeing water protections as “binary,” where a body of water is either protected or not, there could be gradations in protection. Ms. Revels said that she thinks “there is plenty of opportunity – this is not a republican or a democratic issue, this is a human issue.”
The full hearing, as well as the written testimony submitted by each of the witnesses, can be accessed here. The full Supreme Court opinion can be found here.
The views and opinions expressed on the FBLE Blog are those of the authors and do not necessarily reflect the official policy or position of FBLE. While we review posts for accuracy, we cannot guarantee the reliability and completeness of any legal analysis presented; posts on this Blog do not constitute legal advice. If you discover an error, please reach out to contact@farmbilllaw.org.
