Written by Richard Pepino, MS, MSS
The recent decision on the Sackett v. EPA (No.21-45) case by the Supreme Court makes regulating wetlands and other special waters more challenging and will impact public health and the health of ecosystems. The Clean Water Act (CWA) was passed by the Congress in 1972 and signed into law by President Richard Nixon. Certainly, one of the most important laws that emerged from the environmental movement of the 1960’s. The CWA is now 50 years old, and has done a very good job of cleaning up the surface water of the country. However, there was always the problem of what waters should be protected by this law. The big watersheds, like the Delaware, the Mississippi, and the Chesapeake were never in doubt, but some surface waters were always being questioned by special interest groups that sought exemptions from the law so that commercial and industrial practices could proceed. Private development, farming and mining were examples that often wanted these exemptions from the law so that wetlands, small streams, and other seasonal waters that popped up during the wetter parts of the year would not fall under CWA jurisdiction. However, by reducing the categories of water types that are covered by the CWA not only is overall water quality threatened, but this exemption also puts in jeopardy drinking water supplies, as well as important ecosystems that support fishing, recreation, and migration survival of countless species.
The earlier history of the CWA established a general philosophy to allow the technical agencies, like the EPA and the Army Corps of Engineers, to make jurisdictional determinations since they possess the most practical experience with watershed planning.
Pre-2000 court decisions also urged that the term ‘navigable waters’ should be given the broadest possible interpretation to ensure more waters rather than less waters are called “Waters of the US” and subject to the CWA. However, the most recent legal decision, Sackett v. EPA, has shown the Court to be more likely to make determinations that are less favorable to the health of watersheds.
The scenic Appalachian Corridor has suffered significant water quality damage because of mining practices that resulted in the production of acid-mine drainage which have destroyed water quality in headwaters, intermittent streams, and wetlands. The passage of the CWA, some fifty years ago, became an important tool that reduced ecological disasters like we saw happen in Appalachia. However, with the Sackett decision, the Supreme Court has once again shown they are more concerned with decreasing regulatory decision making, based on good science, and more likely to support special interests that often jeopardize our watersheds and drinking water sources.