Known as one of the most pivotal contributions to the foundation of environmental law, the Clean Water Act of 1972 acts as the primary federal law in the United States governing water pollution. By regulating pollution sources and setting surface water quality standards, the act aims to restore and maintain the biological, chemical, and physical components of the nation's waters. For decades, the Waters of the United States (WOTUS) included traditional navigable waters (lakes, rivers, oceans), tributaries (waterways that flow into navigable waters), and adjacent wetlands.
WOTUS is long-standing, but more recently has been a controversial debate. If a body of water is within the WOTUS umbrella, property owners must obtain permits to proceed with any construction, farming, or development plans, which can be costly and take years to get. Thus, a broad interpretation of WOTUS has been frequently opposed by farmers, developers, and industry groups. Conversely, environmental advocates argue that narrow interpretations of WOTUS strip critical protections from vital areas, such as wetlands and streams, that prevent floods and filter pollution.
In 2004, Michael and Chantell Sackett purchased land near Priest Lake, Idaho with plans to build a family home. Three years later, they began backfilling the lot with dirt and gravel. In response to this, the Environmental Protection Agency (EPA) informed the Sacketts that their property contained wetlands that flowed into Priest Lake, meaning that their backfilling violated the Clean Water Act, which prohibits the discharge of pollutants into the WOTUS. According to Issue 1, Volume 137 of the Harvard Law Review, the EPA's criteria for deeming the property a WOTUS were that (1) the wetlands were "adjacent" to an "unnamed tributary," which was, in this case, a non-navigable creek that eventually fed into Priest Lake, and (2) the Sacketts' wetlands, along with a nearby wetland, "significantly affect[ed]" the water quality of the lake.
Faced with threats of penalties, the Sackett couple sued the EPA, claiming their property cannot be defined as a WOTUS. After years of legal dispute, the case was taken to the U.S. Supreme Court in 2023 as Sackett v. EPA. Ruled unanimously in favor of the property owners, the court determined that to be regulated as a WOTUS, adjacent wetlands must be physically touching a larger body of water.
The court determined that to be regulated as a WOTUS, adjacent wetlands must be physically touching a larger body of water.
Although it was a unanimous vote, not all justices completely agreed to every aspect of the ruling. For instance, like the majority Justice Kavanaugh agreed that the Sacketts' property was not covered by the Clean Water Act. However, he disagreed with a category of wetlands being uncovered under the rule: wetlands simply separated by a larger body of water by a man-made barrier or a small, natural barrier, such as a dune.
Disputes over seemingly minute details of a definition emphasizes the significant stakes embedded in statutory language. WOTUS may seem shorthanded, but decades of litigation and debate over that one phrase has determined the fate and treatment of millions of acres of wetlands, the role of landowners in environmental laws, and the drinking water of numerous communities.