Will the Supreme Court Shrink the Clean Water Act?

Less than two weeks before the 50th anniversary of the Clean Water Act, the U.S. Supreme Court heard arguments Monday (click for audio or transcript) in a case that could gut the authority of the federal government to protect streams and wetlands.

The case—Sackett v. Environmental Protection Agency—involves Idaho landowners who say the site on which they want to build a house is not protected by the Act and, thus, they do not need a permit authorizing construction. The U.S. Environmental Protection Agency says the land in question is connected to a protected wetland through groundwater. Wetlands are important to water quality because they filter pollutants and capture floodwaters.

At stake are millions of acres of wetlands and intermittent streams that are vital to clean water and under significant stress.

The difference is significant. At stake are millions of acres of wetlands and intermittent streams that are vital to clean water and under significant stress. According to a 2017 report to Congress by the U.S. Environmental Protection Agency, a 2011 assessment found that 32% of the nation’s wetland area was in poor biological condition, with leading stressors including surface hardening (soil compaction) and vegetation removal.

The EPA’s 2011 assessment found that 32% of the nation’s wetland area was in poor biological condition.

Some observers have said it is likely the Sacketts would have received a Clean Water Act permit had they applied, but the landowners declined to do so, arguing that the permit requirement infringed on their private property rights.

The Supreme Court is expected to issue its ruling next year.

Legal experts have disagreed on the Court’s likely decision based on questions the justices asked of attorneys for the two sides. One report said a majority of the justices “appeared reluctant to wrest wetlands permitting power from EPA in a dispute that had been expected to significantly narrow the scope of the Clean Water Act.” Another report said the Court “appears determined to shrink the Clean Water Act.”

The Supreme Court is expected to issue its ruling next year.