The Supreme Court Case that Threatens Our Waters

This month marks 50 years since Congress passed the Clean Water Act of 1972 to ensure our nation’s waters are swimmable, fishable and drinkable. Why did they do it? Many U.S. rivers were so polluted they would burst into flames — including the Cuyahoga River, which caught fire in 1969, sparking the modern environmental movement.

Yet, a U.S. Supreme Court case may determine how effective this landmark law will continue to be. The main question: What is the proper test for determining which wetlands deserve Clean Water Act protection?

On Oct. 3, the Court heard oral argument in Sackett v. Environmental Protection Agency. A ruling is expected later this year or in early 2023.

The case stems from the Sackett family’s attempt to pour gravel and sand onto a residential lot in Idaho that contained a wetland. The EPA said they could not do that because of its proximity to Priest Lake and ordered them to return the lot to its natural state as stipulated by the Clean Water Act. A 14-year legal battle ensued.

In their appeal to the Supreme Court, the Sacketts are asking for clarification about which wetlands are covered by the law. If the court sides with the Sacketts, who are advocating for a much narrower definition of which waters should be covered by the Clean Water Act, it could deny federal protections to more than half of all wetlands in the country.

NPCA, along with groups representing millions of national park advocates, anglers, hunters and outdoor recreationists, filed an amicus brief in June with representation from Kramer Levin Robbins Russell LLP, arguing that wetlands that significantly contribute to the quality of protected waters downstream must be included in Clean Water Act protections. They also maintain that the plaintiffs’ interpretation of the law is flawed.

Here are five takeaways about the Supreme Court case and its potential impact:

1. What we call our ‘Waters of the United States’ can help protect our drinking water.

The Clean Water Act was enacted to restore and maintain the quality of the nation’s waters. In part, it regulates the discharges of pollutants into “navigable waters,” which are broadly defined as “the Waters of the United States.” Determining which waters are Waters of the United States determines what gets Clean Water Act protection.

The original rule defining Water of the United States decades ago has been reviewed several times with bipartisan, science-backed support. The Obama administration clarified the definition, and then the Trump administration drastically narrowed it by removing protections for over half of all wetlands. Under the Biden administration, the EPA and Army Corps of Engineers are reviewing the rule again and are expected to restore clearer protections through an ongoing, transparent public process, since the nation’s streams, wetlands, lakes and rivers are the source of drinking water for millions of people.

2. A narrow interpretation of ‘wetlands’ would remove protections for the majority of U.S. wetlands.

If the Supreme Court agrees with the Sackett family’s narrow interpretation, their decision would remove Clean Water Act protections for the majority of U.S. wetlands.

Narrowing the coverage of the Clean Water Act would have devastating effects on national parks, rivers and streams, fish and wildlife habitat and recreational opportunities for millions of people.

The National Park Service oversees 150,000 miles of rivers and streams and another 4 million acres of lakes, oceans and other waterways throughout the country — from trout streams in Yellowstone to marshes in the Everglades. Park waters are connected to smaller rivers and wetlands upstream and are integral to the health of our parks and their surrounding communities. Wildlife habitats and broader ecosystems also depend on them.

3. Wetlands serve as natural buffers.

Our waterways are all connected, and what pollutes one, impacts many. Wetlands flow into streams, which flow into rivers and lakes, including our Great Lakes — one of the largest freshwater resources on the planet — and ultimately the ocean. These wetlands serve as natural buffers, filtering out chemicals and toxins. Pollution from mining, development, manufacturing and large farms flows into small waterways, which ultimately harms the water.

Wetlands provide economic benefits, too — in the form of critical flood protection, because they soak up and store floodwater. Just one acre of wetlands can store about 1 million gallons of water, which is especially important as the climate crisis continues to devastate our parks and communities across the country.

For instance, the Indiana Dunes National Park is home to the Great Marsh — the biggest internal wetland on the Lake Michigan shoreline — as well as 350 species of birds and 90 endangered plant species. According to an NPS Hydrographic and Impairment Statistics report, the park’s waters are already 69% impaired, in part because of nearby industrial activity. Under the petitioners’ proposed test, at least 39-56% of streams and 86% of wetlands within one of the park’s watersheds would be denied Clean Water Act protection, likely exacerbating the pollution and hydrological disturbances in the park’s waters, including the Great Marsh.

4. Americans care about clean water.

For more than 20 years, national park visitors have consistently ranked water quality or water access as a top-five most valued attribute when visiting national parks. And where these visitors go, they spend money.

Water supports a $887 billion outdoor recreation industry, according to the Outdoor Industry Association. This includes nearly $140 billion spent on kayaking, rafting, canoeing, scuba diving and other water and recreation activities — all of which takes place in our parks.

Last year, 297 million park visitors spent an estimated $20.5 billion in local gateway regions while visiting National Park Service lands. These expenditures supported 323,000 jobs, $14.6 billion in labor income and $42.5 billion in economic output in the national economy.

5. The Clean Water Act is significant in keeping our parks’ waterways clean.

More than half of 420-plus national park sites have waterways that do not meet healthy water quality standards for drinking, fishing, swimming and other activities. Not every national park has a waterway, but out of the 356 parks that do, two-thirds are plagued by pollution.

Clean water is a basic need. Without clean waterways, the visitor experience suffers and the public’s health is put at risk: from the availability of clean drinking water to opportunities for recreation and the observing of healthy wildlife. We need more, not fewer protections for clean water.