Photo: Supporters of the Supreme Court ruling that narrowed the scope of the Clean Water Act said it reins in overzealous regulators who considered dry washes and seasonal streams subject to oversight. But critics say the change poses a significant threat in states like Arizona, where water, like the San Pedro River here, “is ever so precious.” (File photo courtesy Sandy Bahr/Sierra Club, Grand Canyon Chapter)
Ranchers and Republican lawmakers are welcoming a Supreme Court ruling that narrows the range of waters subject to federal regulation, calling it a win for private property rights that reins in overeager regulators.
“It’s very difficult to navigate federal processes, very difficult. And it seems particularly silly in a case where you’re getting a permit for water that’s almost never there,” said Jeff Eisenberg, director of policy for the Arizona Cattle Grower’s Association, of the costly and cumbersome process of getting government permits.
But environmental groups said the ruling in Sackett v. EPA will be “disastrous for Arizona, where water is rare and protecting it is critically important to both people and endangered species.”
“It leaves almost all of Arizona’s creeks, springs and washes without any federal protections against water pollution.” said Taylor McKinnon, Southwest director for the Center for Biological Diversity. “If you love swimming in polluted creeks, this ruling is for you.”
The ruling Thursday ends a long-running dispute between Michael and Clara Sackett, who wanted to build a house on land they bought near Priest Lake, Idaho, and the Environmental Protection Agency, which said the property contained wetlands. The EPA said the Sacketts did not get government approval for the project, ordered them to stop backfilling site and begin restoration of the site, and threatened fines of more than $40,000 a day if they failed to comply.
At issue was the question of how to define the “waters of the United States,” which are regulated by the EPA and the Army Corps of Engineers under the Clean Water Act. Since the 1970s, those waters have included wetlands, but critics said regulators were including wetlands far removed from traditional “navigable waters,” along with seasonal streams and ditches and drains that feed into surface waters.
The court ruled 9-0 that the Sacketts’ property should not have been subject to federal regulation, but split on where to draw the line over what should and should not be regulated.
Justice Samuel Alito prefaced his opinion for the majority by noting that the Clean Water Act has been “a great success” since its enactment in 1972, making many “formerly fetid bodies of water … safe for the use and enjoyment of the people of this country.”
But he said the boundaries of the act have “been uncertain from the start,” and asked whether waters of the U.S. included “‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows (or) playa lakes?’ How about ditches, swimming pools, and puddles?” That uncertainty put property owners in a “precarious position,” he wrote.
“Because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties,” Alito wrote.
He said the traditional inclusion of wetlands “adjacent” to navigable waters is too broad, and that there must be a direct connection with surface waters for the Clean Water Act to apply. The act, Alito wrote, should only include “those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable from those waters.’”
But in a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan said Congress had been very clear in the scope of the Clean Water Act when it wrote the law, and she said that with Alito’s opinion the court “substitutes its own ideas about policymaking for Congress’s.”
Those three justices also joined in Justice Brett Kavanaugh’s concurrence, which said that narrowing the test from “adjacent” wetlands to “adjoining” would “leave some long-regulated waters no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control for the United States.”
Kavanaugh pointed to Mississippi River wetlands that may be physically separated from the river by levees, but are an important part of river flood control. He said “scientific evidence overwhelmingly demonstrates” that wetlands separated from navigable waters by such barriers still play an important role in protecting the larger waters.
Far from clarifying the issue for property owners, Kavanaugh said, the court’s new standard “is sufficiently novel and vague … that it may create regulatory uncertainty for the Federal Government, the States, and regulated parties.”
Arizona landowners disagreed, saying the narrower rule will make their lives easier.
“I truly believe it grants to private property owners freedom to manage and operate their private property without the heavy hand of the Corps of Engineers and the EPA pressing you down,” said Jim Chilton, who owns a ranch south of Arivaca.
Chilton said he has run into several regulatory barriers from the EPA and the Corps of Engineers while trying to build projects that cross dry washes on his ranch. He said with the the court’s ruling, he plans to build a road across a dry wash from his ranch house to one of his barns.
But Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter, said desert washes “help to feed our perennial waters. They also help with flood control. They help limit sedimentation, and of course, they’re essential to wildlife. Most of our wildlife is associated with riparian areas in some way those vegetation community that grows along rivers, streams and washes.”
She called the ruling disappointing, saying it undervalues Arizona’s waters, most of which are “vulnerable because they’re also not protected by state law.”
“I think people often think about its (the Clean Water Act) significance in places that have a lot of wetlands and big waters,” Bahr said. “But I think it’s even more significant in places like Arizona where we are water-limited and what we have is ever so precious.”
The White House on Thursday called the ruling “disappointing” and said it would work with the Justice Department to review the decision. It said the ruling “defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.”
That was echoed by Rep. Ruben Gallego, D-Phoenix, who tweeted: “Every American deserves access to clean water. Trump’s handpicked Supreme Court just made it easier for the oil and gas industry to pollute our wetlands.”
But Rep. Andy Biggs, R-Gilbert, tweeted that the ruling “counters the Biden administration’s aggressive overregulation” and “rightfully preserved the private property rights and freedoms of millions of Americans.” Rep. Eli Crane, R-Oro Valley, tweeted that ruling the was “a huge win for rural America and small businesses in the fight against government overreach.”
Michael Byrd, the executive director of Prescott Creeks Preservation Association, worries about the impact of the ruling. He said that even though wetlands occupy less than 1% of Arizona, more than 80% of species in the state rely on such habitats.
“It seems like there should be room to protect these areas that are absolutely critical to our river systems,” Byrd said.
He echoed Kavanaugh’s argument that the ruling “just adds a lot of uncertainty to everybody’s world” when it comes to clean-water efforts.
“We had a Clean Water Act that appeared to be working pretty well for the last 51 years. And that has now been materially changed,” Byrd said. “It kind of puts into question what the protections are going to be for most of the state’s waterways. And I think that’s not a good thing.”
– Cronkite News reporters Lauren Irwin, Shelly Garzon, Jasmine Kabiri and Isabel Garcia contributed to this report.