We all need clean water to survive, and we all benefit when our government works to protect our shared interests. Since the passage of the Clean Water Act (CWA) in 1972, we have relied on laws and rules that have protected our public waters—our waters of the United States, as the CWA provides. Last month, in Sackett v. Environmental Protection Agency, our Supreme Court upended a five-decade, science-based set of operating principles for keeping our public waters clean. They did so in favor of private interests, not public ones. And while the regulatory landscape may have become muddled, this Court’s decision is a devastating overreaction and a deep cause for concern about our clean water future.
Sackett arose from a dispute between the EPA and an Idaho couple, Michael and Chantell Sackett, who in 2004, purchased a small lot 300 feet from Northern Idaho’s scenic Priest Lake. When they began backfilling their lot in preparation for building a house, the EPA notified them that their lot was a “wetland” under the terms of the Clean Water Act.
In 2008, the Sacketts brought suit against the EPA, and last week five conservative Justices held that the CWA could not reach wetlands unless they have a “continuous surface connection” to a permanent body of water that, in turn, is connected to “interstate navigable waters” such as streams, lakes, or rivers. This latest court decision upends a longstanding agency rule defining covered wetlands as those “adjacent to” (that is, “bordering, contiguous, or neighboring”) such a body of water.
The majority’s new definition is significantly narrower than courts had been applying. It will make it harder for the EPA to protect millions of acres of wetlands that, even without “continuous surface connections,” nonetheless flow into and deeply affect the waters of the United States. As enunciated in an opinion by Justice Samuel Alito, the Sackett test sharply cuts back federal authority—so sharply that even Justice Brett Kavanaugh, one of the three justices nominated by President Donald Trump, protested that the Court could have easily ruled for the Sacketts without making such a radical change in its interpretation of the CWA. Indeed, he wrote, “the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.” Kavanaugh was joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. In a separate concurrence joined by Sotomayor and Jackson, Kagan derided “the Court’s appointment of itself as the national decision-maker on environmental policy.”
Congress began to tackle the need to keep our water clean in 1948 with the Federal Water Pollution Control Act. It took Congress almost 25 years to require federal permits for discharges, dredging, and filling. That 1972 step was not lightly taken and was based on sound science. It worked.
The Clean Water Act has been credited for reducing wetland loss in the US by 80%. But that progress has not been enough. Even before the Court’s decision in Sackett, the lower 48 lost 80,000 acres of wetlands annually.
And why should we care about the impact of dredge and fill permits on our public waters? Cumulative private actions on private lands can significantly impact water quality, flood resilience, and biodiversity—things from which we derive an essential public benefit.
Because of the Clean Water Act, none of us needs to secure a private lot on a beautiful lake to protect our public waters and the shared benefits they provide. Under the landmark legislation signed by President Richard Nixon, as it has been implemented for five decades, those with a waterfront that may contain wetlands are responsible for conducting themselves in ways that don’t harm this public resource. With privilege comes responsibility—including getting a permit so that your activities on your private land don’t harm connected and adjacent public waters that the rest of us have an interest in keeping clean.
Before the enactment of the Clean Water Act, our public waters were used as a dumping ground. In the Act, Congress recognized that water carries pollution from areas that may appear visually disconnected but are hydrologically part of an amazing system that filters pollution and nurtures biodiversity. Thus, the Act extended federal authority to waters “adjacent to” waters that may be used for navigation.
In Sackett, the majority held that the term “waters” in the CWA refers only to wetlands that are indistinguishable through a “continuous surface connection” with what the Court identifies as usually meaning “open waters” like “lakes, rivers, and oceans.”
This new test changes the meaning of “adjacent.” And it creates a huge environmental problem. Wetlands are often valuable precisely because they are not continuously connected to larger navigable-in-fact waters used by ships, large open lakes, or ocean water bodies. Wetlands provide many ecological services, filter pollutants, buffer storm flows, and are often crucial to the health and viability of many species. The text of the Clean Water Act is clear that these are functions meant to be protected, but the majority ignored that despite its usual concern with statutory language. With minor caveats, five justices took it upon themselves to make direct connectedness — “a continuous surface connection” — the test for federal wetlands protection. That test is nowhere in the statute. If disputed water is “nearby” larger waters, that is not good enough to permit regulation.
As Kavanaugh’s concurrence recognizes, this “continuous surface connection” test has no basis in the CWA’s text. In her separate concurring opinion, Kagan asserts how astounding it is that five justices rejected a longstanding, bipartisan consensus regarding the meaning of “waters of the United States” to include adjacent wetlands when they could have given the Sacketts relief without doing so. The liberals on the Court, plus Justice Kavanagh, reached the same result without “slashing and burning,” as the late Justice Harry Blackmun would have said.
But maybe that was the majority’s point- to elevate private interests over public ones without concern for what happens to our precious waters – to slash and burn our public waters in favor of private interests.
Science and experience have taught us that what happens upstream can have significant downstream effects. Using our public waters as a dumpster impacts us all. The Clean Water Act and its associated regulations codified made what we know and ushered in the protection of public waters in our nation.
But in their zeal to protect private interests and deconstruct government, the Court’s majority showcased their disregard for the larger legal context supporting water’s public nature.
Water—as opposed to land, oil, or personal property—has never been privatized in our legal system the same way. It makes teaching water law and policy, as I have done for 20 years, a robust context for sorting out society’s views of what is private and public – what can be owned and what should not be owned.
Despite longstanding pressure from powerful, private interests to make water a commodity, our legal system has never erased that line – though it often plays at the edge. Why? Because the instinct to privatize and commoditize water presents an irresistible temptation for those inclined to turn a profit or insulate their interests from those of the public. Yet, our legal system has maintained concepts and bodies of law that recognize the public nature of water.
Any introduction to water law teaches that interests in water are different. They are usufructuary—meaning that one has the right to use them without owning or altering the underlying nature of the resource that is owned by another. Here, that is, the public. In Western states, either the state constitution or early water statutes recognize water as being held by the public. As eastern states adopt regulated riparian codes, there is recognition of the public nature of water. Across the United States, private interests in water are limited by distinct legal concepts like “reasonable” and “beneficial” use. Water rights are consistently evaluated against the public interest. Many water utilities are public entities with citizen-elected boards. Even when the uplands are privately owned, the public maintains access and use rights to our rivers. This “public trust doctrine” animates governments’ responsibilities to manage and protect the larger public’s interest in water.
Our public waters are threatened by efforts to privatize public works, assertions of the Fifth Amendment takings claims when regulations affect water usage, and the creation of private water markets where water goes to the highest bidder. Last week, our Supreme Court joined this effort to prioritize private interests over our shared public interest in clean water.
We will suffer because of this choice. The Sacketts will get to build their lovely waterfront retreat (many argue they could have done this years ago by just complying with the permit requirements). Some of us will get to create similar retreats—but not most of us. For over 50 years, the Clean Water Act, enacted by a Democratically controlled Congress and signed by a Republican president, created a world where private parties can build private retreats but aren’t allowed to damage our public waters when they do so.
When Congress moves, as it should, to correct the Supreme Court’s misguided ruling and as states use their water laws and policies to keep our shared water clean, let’s not forget that water is different. There was a clear way, as outlined in the concurring opinions, to give the Sacketts relief from the dredge and fill permitting requirements and still uphold the public values associated with protecting wetlands.
We all live in an increasingly privatized world, but we have not yet let water slip from our common control. When I encounter folks with whom I politically disagree, there is one place where I often find common ground: None of us wants to live in a world where water is privatized or where water can be damaged by private interests. It is too important, too precious. Let the titans profit elsewhere. Laws, like the Clean Water Act, embody public values. The Supreme Court should have respected them as well.
