The following essay is covered in The Conversation, an online publication.
A high-profile case that could fundamentally alter the federal government's ability to address water pollution will be the topic of the new session of the US Supreme Court. The question of which wetlands and bodies of water can be regulated by the federal government under the 1972 Clean Water Act has been debated by courts and regulators for years.
State and local governments regulate land use under the keystone environmental law. Wetlands are areas where the land is wet all or part of the year.
Wetlands provide valuable ecological services, such as soaking up flood water. Landowners need to get permits to discharge dredged or fill material in a protected wetlands. The case is of interest to developers, farmers and ranchers, as well as the agencies that administer the Clean Water Act, because of the time and cost involved.
The Supreme Court is willing to curb the power of the federal government on environmental issues. The types of wetlands that qualify for federal protection are expected to be cut back by the court. Development and pollution have led to the loss of more than half of the wetlands in the U.S.
One of the state's largest lakes is 300 feet from the land owned by Chantell and Mike Sackett. The parcel used to be part of the wetlands. Even though the lot has been cleared, it still has some characteristics, such as saturation and ponding. It's still connected to the lake and wetlands by the water that flows underground.
The Sacketts did not have a permit to place fill material on the site. The land was ordered to be restored by the EPA in 2007, after it was found that the wetlands were subject to the law. They argued that their property was not a wetlands.
The Supreme Court sent the case back to the lower courts after it held that the Sacketts had the right to challenge EPA's order. They lost on the merits and are now before the Supreme Court. What is the scope of federal regulatory authority under the Clean Water Act?
The discharge of pollutants into the waters of the US is regulated by the Clean Water Act. If a pollution source gets a permit under Section 404 of the Act for dredged or fill material, discharges may occur.
Wetlands and waterways that are connected to bodies of water are included in the "waters of the United States". Wetlands can still have important ecological connections to larger water bodies even though they are not wet year-round.
No majority of the court could agree on how to define "waters of the United States." Justice Antonin Scalia defined the term narrowly to include streams, oceans, rivers and lakes. He said that the water of the US should not include dry channels.
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Scalia suggested that the Clean Water Act should only apply to wetlands with a continuous surface connection to bodies of the United States in their own right.
Justice Kennedy took a different approach. The purpose of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
Kennedy argued that the wetlands should be covered by the Clean Water Act if they have a significant connection with the waters.
Lower courts have been left to sort out which approach to follow after Scalia and Kennedy had differing opinions. If either Kennedy's or Scalia's standards are satisfied, the Clean Water Act applies.
Regulators have had a hard time with this question. The Obama administration incorporated Kennedy's approach into a rule that followed an extensive rulemaking process. The Scalia approach was adopted in the new rule by the Trump administration. A new rule proposed by the Biden administration would deem the waters of the United States present if there is a significant connection between the ocean and land.
Lower courts, regulatory agencies and land owners could be given clear direction on the meaning of "waters of the United States" by the court's final ruling. The government is able to protect the nation's waters.
Some farmers and ranchers may be required to apply for Section 404 permits if a broad interpretation is used. It could make sure that pollution is not discharged into federal waters.
The permitting process can impose significant costs and delays on property use. The Biden administration believes that most people can proceed under general permits that impose modest costs and burdens.
The fact that no other justices joined Kennedy in his concurring Rapanos opinion suggests that this case will produce a narrow reading of the United States. Clean water protections would be undermined.
If the court requires a continuous surface connection, federal protection would no longer apply to areas that affect the water quality of the U.S. It may be possible to remove an area from federal protection if a road, levee or other barrier is built to separate a wetlands from other nearby waters.
Congress has the ability to clarify the meaning of the Clean Water Act, but previous attempts to define it have failed. Today's Congress is likely to fare no better. This issue could be decided by the court's ruling in Sackett.
The conversation published this article. The original article is worth a read.
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