In May of last year, the Supreme Court issued a decision in Sackett v. Environmental Protection Agency, a consequential environmental law case concerning the Clean Water Act and its regulatory reach. The Clean Water Act was passed in 1972 as an amendment to the Federal Pollution Control Act of 1948, with the goal of dramatically increasing water pollution regulation for the safety of wildlife and the American people [1]. Before its passage, the waters of the United States were commonly used as dumping grounds for waste of all kinds, including raw sewage and chemical waste from industrial facilities [2]. Even in the short amount of time after its passage, the Clean Water Act dramatically changed the biological landscape of America’s waters, making them safe for fishing and swimming, and reducing the cost of cleaning our drinking water [2]. It accomplished this by implementing sweeping safeguards, including the regulation of waters “adjacent” to navigable waters of the United States and by creating a permit issuance scheme that required a permit to dispose of waste in certain areas.
The question before the Court in Sackett was whether or not wetlands, marshes, and ephemeral waters without a “constant surface connection” to a water source that was navigable by boat constituted adjacent waters of the United States. The Court decided they did not [3]. This meant that many marshes, bogs, and other essential wetlands would no longer be subject to the protection of the EPA and the Clean Water Act, especially in the midwestern United States. Hundreds of thousands of miles of waters became more vulnerable to pollution than they had been before the case was decided [4]. This threat of pollution was particularly daunting in the 24 states that do not have state laws regulating these waters [5]. Tom Kiernan, President and CEO of American Rivers, a nonprofit devoted to the protection and promotion of the health of America’s rivers, remarked that the ruling puts “rivers and people at greater risk from pollution and harm” [6].
In 2021, Gallup conducted a poll in which water quality was named the environmental problem that most worried the American public [7]. Water pollution can lead to a whole host of issues for people who come in contact with it, including illness and, in some cases, death [8]. Not only can humans become impacted by the water that we drink, but we can also be impacted by the water wildlife is drinking, who may pass along illness when consumed [8]. The wetlands that were affected by the Supreme Court’s ruling are habitats for thousands of species of wildlife that are recreationally and commercially important to many communities around the country [9]. They are essential for flood and erosion control, recreation, and aesthetics [9]. Without maintaining the quality of these wetlands, experts worry that it will increase the risk of public health emergencies, especially in communities of color, and restrict access to recreational spaces like lakes and rivers [6].
The Chesapeake Bay Foundation, an organization committed to fighting pollution degrading the Chesapeake Bay’s streams and rivers, also believes the ruling could affect other sources of pollution and groundwater [10]. Because the decision impacts ephemeral water sources – those that may only be navigable for one season out of the year – it may allow unpermitted polluters to dump waste into areas that were previously protected by the Clean Water Act without knowledge of their vulnerability. The Chesapeake Bay Foundation also believes that groundwater could be another unsuspecting victim of this ruling. If state laws are not strong enough to prevent pollution into areas previously protected, pollutants could seep into groundwater and aquifers that are used for drinking water, impacting the health of unprotected communities [10].
In recent years, the water quality in the United States has continued to worsen with the advent and exacerbating effects of climate change [11]. Wildfires, algae blooms due to rising temperatures, and the overflowing of wastewater treatment plants are all causing worsening water quality. One recent study found that there was at least one per- and poly-fluoroalkyl substance in 45% of the drinking water in the United States [12]. These substances are contaminants that could have severe adverse effects on the people who consume them. Per- and poly-fluoroalkyl substances have led to altered immune and thyroid function, liver disease, adverse reproductive and developmental outcomes, cancer, and more [13].
In response to the ruling, the EPA has put forth amendments to clarify the meaning of “waters of the United States” to provide a path forward for water regulation that adheres to the Supreme Court’s ruling [14]. The ruling put into question implementation of the clean water act, but EPA Administrator Michael S. Regan assures that the EPA will do “everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”
1. History of the Clean Water Act. (n.d.). United States Environmental Protection Agency. Retrieved October 31, 2023. https://www.epa.gov/laws-regulations/history-clean-water-act.
2. Clean Water Act. (n.d.). The National Wildlife Federation. Retrieved October 31, 2023. https://www.nwf.org/Our-Work/Waters/Clean-Water-Act#:~:text=Before%20the%20Clean%20Water%20Act,nation's%20total%20wetlands%20were%20lost.
3. Sackett v. Environmental Protection Agency, 598 U.S. __ (2023). https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.
4. Sackett v. EPA’s Aftermath and the Risk of Inflamed Western Water Conflict. (2023, October 2). Just Security. Retrieved October 31, 2023. https://www.justsecurity.org/88982/sackett-v-epas-aftermath-and-the-risk-of-inflamed-western-water-conflict/#:~:text=The%20Sackett%20decision%20removed%20the,already%20tenuous%2C%20is%20not%20improving.
5. What Comes Next for the Clean Water Act? Six Consequences of Sackett v. EPA. (2023, May 26). Environmental Law Institute. Retrieved October 31, 2023. https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa.
6. Supreme Court Guts Clean Water Protections, Putting Wetlands, Rivers, Public Health at Risk. (2023, May 25). American Rivers. Retrieved October 31, 2023. https://www.americanrivers.org/media-item/supreme-court-guts-clean-water-protections-putting-wetlands-rivers-public-health-at-risk/.
7. Water Pollution Remains Top Environmental Concern in U.S. (2021, April 19). Gallup. Retrieved October 31, 2023. https://news.gallup.com/poll/347735/water-pollution-remains-top-environmental-concern.aspx.
8. Water Pollution. (n.d.). Harvard T.H. Chan School of Public Health. Retrieved October 31, 2023. https://www.hsph.harvard.edu/ehep/82-2/#:~:text=Water%20pollutants%20may%20cause%20disease,such%20as%20cholera%20and%20diarrhea.
9. Why are Wetlands Important? (n.d.). United States Geological Survey. Retrieved October 31, 2023. https://www.usgs.gov/faqs/why-are-wetlands-important#:~:text=Wetlands%20provide%20habitat%20for%20thousands,products%2C%20recreation%2C%20and%20aesthetics.
10. Four Things Bay-Savers Should Know about the Supreme Court’s Wetlands Ruling. (2023, June 14). Chesapeake Bay Foundation. Retrieved October 31, 2023. https://www.cbf.org/blogs/save-the-bay/2023/06/four-things-bay-savers-should-know-about-the-supreme-courts-wetlands-ruling.html#:~:text=The%20May%2025%20decision%20in,wetlands%20and%20the%20navigable%20waters.
11. Water Quality and Climate Change. (n.d.). Environmental Protection Agency. Retrieved November 1, 2023. https://www.epa.gov/climate-research/water-quality-and-climate-change-research#:~:text=Nutrient%20pollution%20is%20a%20significant,more%20pollution%20in%20water%20bodies.
12. Kelly L. Smalling, Kristin M. Romanok, Paul M. Bradley, Mathew C. Morriss, James L. Gray, Leslie K. Kanagy, Stephanie E. Gordon, Brianna M. Williams, Sara E. Breitmeyer, Daniel K. Jones, Laura A. DeCicco, Collin A. Eagles-Smith, Tyler Wagner. (2023). Per- and polyfluoroalkyl substances (PFAS) in United States tapwater: Comparison of underserved private-well and public-supply exposures and associated health implications, Environment International, 178, 1-12. https://doi.org/10.1016/j.envint.2023.108033.
13. Fenton, S. E., Ducatman, A., Boobis, A., DeWitt, J. C., Lau, C., Ng, C., Smith, J. S., & Roberts, S. M. (2021). Per- and Polyfluoroalkyl Substance Toxicity and Human Health Review: Current State of Knowledge and Strategies for Informing Future Research. Environmental toxicology and chemistry, 40(3), 606–630. https://doi.org/10.1002/etc.4890.
14. To Conform with Recent Supreme Court Decision, EPA and Army Amend “Waters of the United States” Rule. (2023, August 29). United States Environmental Protection Agency. Retrieved November 1, 2023. https://www.epa.gov/newsreleases/conform-recent-supreme-court-decision-epa-and-army-amend-waters-united-states-rule.