Justices considering extent of federal power to protect waterways

WASHINGTON (November 11, 2022)—The Supreme Court is currently deciding a case which may determine the future of wetlands around the Chesapeake Bay and across the country.

On Oct. 3, the Supreme Court heard arguments in Sackett v. EPA. The case stems from a seemingly parochial concern: a family in Idaho was cited for filling in wetlands on its property without a permit. However, the implications of this case are far-reaching and potentially dangerous, according to environmental groups like the Chesapeake Bay Foundation.

Lawyers for the Sackett family are contending that under the Clean Water Act, the Environmental Protection Agency (EPA) only has authority to regulate "navigable" waters, that is, permanent waterways that a boat or ship could pass through, not wetlands, seasonal streams or other bodies of water not directly linked to the sea.

If the justices were to accept the Sacketts' argument, the EPA would be hamstrung in regulating large swaths of the wetlands in the United States, especially on the Delmarva peninsula. The US Forest Service estimates that the peninsula is home to as many as 17,000 "Delmarva bays," also known as "whale wallows," which are small, oval-shaped indentations covering some 34,560 acres of the peninsula, according to the Chesapeake Bay Foundation.

In addition to providing habitats for many plants and animals, wetlands act like sponges absorbing storm surge and flood waters. The protection to coastal communities provided by wetlands is increasingly important as sea levels rise and extreme weather events become more frequent.

Wetlands also catch and filter runoff from farmlands, parking lots and roads, keeping pollution out of Maryland streams, rivers and ultimately the Chesapeake Bay.

The Chesapeake Bay Foundation filed an amicus brief supporting the EPA's interpretation of the Clean Water Act and Jon Mueller, the Chesapeake Bay Foundation's vice president for litigation called the Sacketts' position "extreme."

"When you look at the purpose of the (Clean Water) Act, which is to protect water quality and restore it where need be, then you cannot assume that Congress meant that only the permanent bodies of flowing water that you can float a boat on are going to be covered," Mueller told Capital News Service. "There are just too many other waters that are very important to our natural resources, but also to human health to allow that to happen."

In oral arguments, most of the justices seemed skeptical of the Sacketts' sweeping argument. Justice Brett Kavanaugh repeatedly questioned why the court should break with 45 years of precedent, which has stated that a wetland covered under the Clean Water Act can be separated from a navigable body of water.

"This case is going to be important for wetlands throughout the country and we have to get it right," Kavanaugh said. "So why wouldn't a wetland separated by a berm, dune, levee or dike be covered, contrary to what the past 45 years of precedent have suggested?"

Conversely, the justices also seemed to want to balance environmental protection with providing better clarity for homeowners who may have a difficult time discerning what is and is not a protected wetland.

Mueller, while concerned about the implications of the case, maintains a positive outlook towards an eventual ruling: "I think the court has its work cut out for it, but I'm kind of optimistic that we aren't going to end up with an extremist view when the ruling is put forth."

It should be noted that there are state laws on the books in Maryland and Virginia that would still protect wetlands in the region if the Supreme Court rules against the EPA. However, regulation across the region would become a patchwork.

Delaware would be at greater risk because it follows federal guidance on the definition of covered waters. According to the Chesapeake Bay Foundation, Delaware has 30,000 acres of isolated wetlands, including Delmarva bays, that are threatened with destruction.

Notably, this is the second time the Sacketts have argued before the Supreme Court over the same 2007 incident in which they were cited by the EPA for improperly filling in wetlands on their property.

In 2012, the Supreme Court issued a unanimous decision in favor of the Sacketts. The ruling stated that EPA orders are subject to civil challenge under the Administrative Procedure Act.

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