06/08/2023
WHAT THE NEW SUPREME COURT WETLAND RULING MEANS FOR HUNTERS
On May 25, the United States Supreme Court handed down a ruling in Sackett v. EPA that strips Clean Water Act (CWA) protections from wetlands that do not have a “continuous surface connection” with adjacent water bodies.
In a two-part decision that will guide the future of wetland policy, the court ruled unanimously in favor of Michael and Chantell Sackett, who backfilled a soggy marsh on their Idaho property near Priest Lake in 2004. However, the court was split 5-4 on determining the type of wetlands that should fall under federal regulatory jurisdiction.
What is WOTUS?
At a fundamental level, the Sackett case boiled down to a matter of definitions and jurisdictions. In the case, the court defined what type of wetlands are considered Waters of the United States (WOTUS), and therefore are under federal jurisdiction—a concept first laid out in the Clean Water Act of 1972.
The Act gave the EPA (and in some cases the U.S. Army Corps of Engineers), authority to regulate pollutant discharge into “navigable waters of the United States,” further defined as the “waters of the United States including the territorial seas.” A remarkably broad definition, lending itself to a logical follow-up question: what classifies such waters?
The Sackett case asked the courts to decide once-and-for-all how and when wetlands should be considered WOTUS— the Scalia “test” or the Kennedy “test.” In the final opinion, the court wrote that the CWA “extends to only wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” and that said wetlands must have “a continuous surface connection” with that water.
On a large scale, big swaths of land in water-rich areas like the prairie pothole country of North and South Dakota, the Alaskan tundra, or the Chesapeake Bay are likely no longer federally protected by the CWA’s pollution regulations. These areas could still be protected by state regulations, but in most cases, they’re much weaker than federal protections.
What Happens Next?
Since the ruling was handed down, the EPA has stated that it will revise its January rule notice, and “interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” The imminent loss of wetland habitat is a very real prospect.
At a practical level, the ruling means property owners or developers can now backfill areas of disjointed standing water, as the Sacketts did on their Idaho property, without worrying about CWA compliance. Even if said waters function as wetlands, they will no longer be considered “waters of the United States” if not connected by surface flow to larger bodies.
