The U.S. Supreme Court has ruled in Sackett v. EPA that the federal protections offered by the Clean Water Act (CWA) will have a narrowed definition of “waters of the United States.” Wetlands, which had previously been covered under the CWA if they are “adjacent to” other waterways, have now been interpreted to only be subject to CWA provisions if the wetlands directly adjoin rivers, lakes, and other bodies of permanent water.
A key distinction from previous CWA language involves this new necessity for “continuous surface connection.” Here’s the exact language in the Sackett v. EPA decision written by Justice Alito and joined by Justices Robers, Thomas, Gorsuch, and Barrett:
“We hold that the CWA extends to only 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.”
Wetlands are areas where the land is wet for certain periods of time, or all year round and typically supports a distinct community of plants and animals. They serve a variety of vital ecological functions including:
Creating habitats for fish, amphibians, birds, and other wildlife
Replenishing groundwater that communities rely on
Absorbing floodwaters to reduce flood damage and erosion
Supporting diverse food chains important for fishing
Creating climate resilience by storing and releasing water
Filtering pollution to reduce pollutants in nearby rivers
Sequestering carbon
Supporting healthier forests and cleaner air
Providing ecosystem services that lead to economic benefits such as water treatment cost savings and increased property values
How this Decision Will Impact the Connecticut River Watershed
Wetlands are an essential component of healthy watersheds regardless of whether there is a “continuous surface connection.” Ecosystems are inherently connected. In the case of watersheds, this connection is not always on the surface. Connectivity – or lack thereof – below the ground also affects overall water quality and ecological integrity. That seemingly random low swampy spot may be critical in helping filter out runoff contaminants before groundwater reaches a spring-fed stream or an aquifer. Wetlands also support animal and plant communities that may not be found in other areas. Vernal pools are a great example of ephemeral, unconnected wetlands that are critical habitat for diverse invertebrate and amphibian species.
The decision by the Supreme Court will leave many ecologically significant wetlands vulnerable to alteration or development. In fact, the new language is estimated to exempt over 50% of the wetlands in the USA from CWA protections. Wetland destruction could lead to reduced biodiversity, wider areas of drought (or flooding), more water pollution, and lower climate resilience in the Connecticut River watershed – challenges that already exist without the increased risks this re-definition of the Clean Water Act poses.
Additionally, wetlands are located where they are due to the natural movement and accumulation of water from snow melt, precipitation, periodic flooding, and other environmental factors, so developing on wetland areas or altering wetland function could lead to property damage for those living on or around the altered wetland landscape, and increased flood risk to downstream communities.
How Connecticut River Conservancy is Moving Forward
Much of the work CRC does has been possible thanks to the CWA as it has existed for decades, and this decision reversed years of precedent related to how waters/wetlands are developed or protected. It’s a chip off the CWA in the context of other environment-related Supreme Court decisions that may have a negative impact for rivers.
That being said, it also increases the importance of water-based advocacy organizations like CRC in making sure that state laws are more protective of water resources than loose Federal decisions.
At this time, the new ruling opens many questions as to how the requirement for wetland surface connectivity will impact federal, state, and local pollutant regulation, permitting processes, water quality certifications, seasonal wetlands, source water protection, and development in sensitive habitats. We are working to understand how this may change both our immediate and long-term work to protect and advocate for the health of the Connecticut River watershed and how state or local policies within our four-state advocacy area can continue to consistently support protection for all wetlands based on sound scientific principles.
Stay connected with the latest updates via our newsletter and we welcome your questions or concerns via CRC@ctriver.org.
Written by Diana Chaplin, Kate Buckman, Kelsey Wentling, and Kathy Urffer