Today the United States Supreme Court released its decision in Sackett v. EPA. By significantly narrowing the definition of which wetlands and other waters are protected by the Clean Water Act, the decision could damage the decades-long effort to restore the Chesapeake Bay and its waterways.
Written by Justice Samuel Alito, the opinion rejects EPA’s authority to regulate wetlands unless they have a continuous connection to “navigable” surface waters such as a creek, stream, or river.
The decision means wetlands that are adjacent to surface waters but only directly connected underground, including thousands of isolated wetlands unique to the Bay watershed, lose protection from being dredged and filled without a permit. While the decision’s reasoning is unclear, wetlands that only flow during certain seasons of the year or after it snows or rains may have lost federal protection.
The ruling contradicts the definition of protected waters the Biden administration finalized in January. That definition restored protections for isolated wetlands and wetlands that do not flow year-round that the Trump administration repealed in 2020. The Biden administration’s definition also updated wetlands protections to reflect relevant Supreme Court case law and the latest science.
The watershed’s roughly 1.5 million acres of wetlands are critical to restoring the Bay and its tributaries across six states and the District of Columbia. Wetlands trap pollutants running off farmland, suburban parking lots, and city streets before they can reach the 111,000 miles of local streams, creeks, and rivers that empty into the Bay.
By absorbing storm surges and flood waters like sponges, wetlands protect coastal and flood-prone communities from climate change effects like sea-level rise and "sunny day" flooding that threaten lives, businesses, and property.
Maryland, Pennsylvania, and Virginia have state regulations that could offer some coverage for wetlands EPA can no longer regulate. But loopholes, waivers, and limited enforcement by state officials would leave many of these ecologically important wetlands at risk.
The danger is greater in Delaware and West Virginia, which both follow the federal definition of covered waters in lieu of establishing their own state protections.
Chesapeake Bay Foundation Vice President of Litigation Jon Mueller issued the following statement about the decision:
“This dangerous decision risks damaging decades-long efforts by multiple states, federal agencies, and local jurisdictions to restore the Bay and its waterways. States without strong wetlands protections could now abandon their Chesapeake Clean Water Blueprint responsibility to reduce nitrogen, phosphorus, and sediment pollution in those areas because they are no longer covered by the Clean Water Act.
“The Sackett ruling also ignores accepted science on the interconnected nature of wetlands. Isolated wetlands and wetlands that don’t flow continuously are among the wetlands critical to restoring and protecting water quality across the Bay ecosystem, protecting vulnerable communities from extreme weather, and improving our region’s climate resilience.
“Far from clarifying which waters are protected by the Clean Water Act, this ruling only sets us up for continued litigation and uncertainty while limiting our ability to protect and preserve the natural wonder we all treasure. The Bay, its tributaries, and the 18 million people living in its watershed deserve better.”