How building a house in Idaho changed national wetlands policy and now threatens waterways in Alaska
By Rachel Briggs, staff attorney, and Vicki Clark, executive director
In late May, the U.S. Supreme Court again stepped out of its role as interpreter of the Constitution and law and did what only Congress is allowed to do: Rewrite the definition of “waters of the United States” in the Clean Water Act.
If you care about clean water and understand the tremendous progress made in the last 50 years in cleaning up rivers choked with so much pollution they burned, seeing huge fish kills because of toxic pollutants, and seeing beaches closed to swimming because people were getting sick, then you should worry about how the Sackett v. EPA case reverses that progress.
Here’s how it happened. Michael and Chantell Sackett wanted to build a house in Idaho, so they started backfilling their somewhat swampy property so they could build. The Environmental Protection Agency sent them a compliance order requiring the couple to restore the property because it contained protected wetlands. A decade-long court battle ensued.
(SUBSCRIBE to the Alaska Brief Newsletter)
By the time the case got to the Supreme Court for the second time, it no longer had to do with applying the law as it stood to the facts of the case. Instead, certain justices of the Court sought to establish a new rule to “protect private property” and write millions of acres of wetlands out of the definition of “waters of the U.S.”
In their words and actions
We won’t spend a lot of time on the details of the opinions, but it is important to know that there were four opinions: one by Justice Alito, a second by Justices Thomas and Gorsuch, a third by Justices Kavanagh, Sotomayor, Kagan and Jackson, and a fourth by Justices Kagan, Sotomayor, and Jackson.
While all four opinions agreed that the Sackett’s property was improperly considered a wetland, each opinion got there through a very different rationale. And the rationale of the controlling opinion—authored by Justice Alito—rewrote the definition of the wetlands included in “waters of the U.S.”
In it, Justice Alito used a sledgehammer to remove the words “wetlands adjacent thereto” from the definition of waters of the U.S. in section 404(g) of the Clean Water Act, instead deciding that only “wetlands adjoining” such waters are covered by the law. The difference is vast, and completely unsupported by the statutory text, context, and legislative history. Generally speaking, the Supreme Court is tasked with interpreting the actual words of the statute, not completely obliterating them.
By removing “adjacent” wetlands from the definition, and leaving only “adjoining” wetlands, the new rule means that a wetland must have “a continuous surface connection with” waters of the U.S., making it difficult to determine where water ends and wetland begins. This is a significant retreat from actual hydrological science that shows that waters and wetlands have complicated connections both on the surface and below it.
And while “continuous surface connection” may sound clear, the new standard is not a clear-cut rule that will be easy to apply. As Justice Alito acknowledges in his opinion, certain exceptions will have to be made for tidal waters and artificial barriers like dikes—but the boundaries of those exemptions remain opaque.
Justice Kavanagh’s concurrence comes to the same conclusion by following the law as it was written, which would have preserved 45 years and eight presidential administrations’ interpretation of the law, and followed the scientific evidence that “overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood control.” Taking this watershed approach is precisely why we have made progress in cleaning waterways over many decades under the Clean Water Act.
Justice Kagan’s concurrence agrees with Justice Kavanagh’s analysis and then calls out Justice Alito for ignoring the Court’s duty to interpret the law rather than reach a conclusion based on the judge’s policy preferences. She then wrote, “So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. ‘[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.’”
And Justice Thomas’ concurrence? We won’t bore you with the arcane history of navigability of waters for interstate and foreign commerce from 1838. Let’s just say it would annihilate protections for wetlands covered by the Clean Water Act, as well as traditionally recognized rivers, lakes, and streams. ‘Nuff said.
Why worry?
Clean water is at stake—drinking and swimming water, water vital to the health of plants, fish, animals, food, health, life and so much more. Wetlands also provide crucial resiliency during flood events, which we all know are becoming more and more common.
At minimum, the Sackett case continues the Court down the road of legislating from the bench and doing Congress’ job rather than its own. And they ignore the text of the laws as written.
This Court has many Justices with policy agendas. One of those agendas is to do away with regulation. Justice Alito sets us straight about his perspective by saying early in the opinion, “The Clean Water Act is a potent weapon.” In this case, we would argue, Justice Alito’s pen is the weapon and clean water the target.
Reasonable regulation is what protects and contributes to the health, safety, and welfare of human communities today and for future generations. We have proof: The Clean Water Act improved water quality over the past 45 years. We need water to survive.
An even more troubling aspect of these policy-making opinions is that they are taking us away from the rule of law. When legal mandates previously decided by the Supreme Court become inconvenient, this Court manufactures new rules. In West Virginia v. EPA, the Court addressed a basically moot issue because it constituted a “major question” about whether EPA had gone too far. That was the case where Justice Kagan first wrote the quote referenced earlier. These types of decisions usurp traditional legislative authority and allow the Court to re-write our statutes on the backs of flimsy and inconsistent legal theories. This not only creates bad decisions, but also makes the law more difficult to apply and less reliable going forward, damaging our nations’ systems and institutions.
How does this ruling impact Alaska?
Let’s start with the good news. Many of the cases Trustees works on, like protecting Bristol Bay from the proposed Pebble mine, involve rivers, lakes, and streams that are clearly jurisdictional wetlands—those covered by the Clean Water Act—under the law. We can continue to use the Act as a tool for protecting these places from pollution and disturbance.
However, the Supreme Court ruling significantly limits the scope of wetlands protected by law. Alaska holds 170 million acres of wetlands—more than all other states combined—and 63 percent of the nation’s remaining intact wetlands, including endangered ecotypes like peatlands that are essential for filtering water, mitigating flooding, cooling streams, and sequestering carbon. Many of these important wetlands would not be considered jurisdictional under the new decision, despite their clear ecological relationship to adjacent waters. These places previously safeguarded under Clean Water Act authority have now been removed from federal protection.
The ramifications go further. Not only are these wetlands not directly protected, but their removal from consideration will also affect how federal agencies evaluate the impacts of proposed projects. When an agency is evaluating a proposed mine, road, or other form of industrialization, it determines what the environmental impacts will be and then determines if those are acceptable and, if not, whether those impacts can be mitigated. Now that the Supreme Court has declared large swaths of wetlands beyond the authority of the agencies tasked with protecting our water quality, those agencies are likely to be much more conservative in how they define, quantify, and value impacts to those wetlands. This could lead to skewed analysis that ignores the vast majority of impacts a project might have on water quality.
These changes are just the tip of the iceberg. It takes some time to fully unfold the impact of a decision like this. The agencies will need to interpret the Supreme Court’s ruling, decide what that means practically, reconfigure their guidance accordingly, and put all that into practice—at which point new challenges will inevitably arise, and district or circuit courts will have the opportunity to decide whether the agency practice is consistent with the Supreme Court’s decision. And those decisions may eventually work their way back to the Supreme Court, crystallizing doctrine over time.
What we know now is that the Army Corps has put a hold on jurisdictional determinations while it figures out the implications of this ruling.
In the Sackett decision, the Supreme Court dealt the nation a curveball, upsetting decades of law that has been slowly building and perverting the underlying purpose of the Clean Water Act. There is no obscuring how deep a blow this is, and there is much to grieve. But just as a trickle of water shapes stone, slowly and deliberately, drop by drop, we too have the opportunity to shape this new legal reality through regulation and interpretation, case by case. And Congress, like a great river, can carve a sweeping path with new legislation—if it acquires the will.
None of those courses are swift or easy, but they are possible. And we at Trustees will keep working, slowly and surely, with all the tools we have, to protect the lands, waters, animals, and people of Alaska—be they clearly separate, as the Court would have it, or inextricably intertwined, as we know them to be.