Click the link to read the article on the Field & Stream website (Travis Hall). Here’s an excerpt:
On May 25, 2023, the Supreme Court of the United States (SCOTUS) issued a ruling that could ultimately rescind federal protections from more than 50 percent of the nation’s wetlands. With its 5-4 ruling in a case known as Sackett v. EPA, SCOTUS declared that the Clean Water Act—a measure long-regarded as the most impactful clean water safeguard ever enacted—no longer applies to isolated wetlands that aren’t visibly connected to larger water bodies by continuous, surface-level flows. According to sportsmen’s groups, the ruling will leave these isolated wetlands unprotected from development, drilling, and other sources of pollution. While the decision will be a boon to the homebuilding and extraction industries, it could have far-reaching and detrimental repercussions for wildlife species that rely on cold, clean water sources—like trout and waterfowl.
“It’s bad news for hunters and anglers,” Alex Funk, Director of Water Resources and Senior Counsel for the Theodore Roosevelt Conservation Partnership (TRCP), tells Field & Stream. “Everything from ducks to cold-water fish species like trout rely on headwater streams and headwater wetlands, like fens, to help maintain water temperatures—those are at risk now.”
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The Clean Water Act’s stated goals were beautifully simple: Make America’s rivers and wetlands “swimmable and fishable” again. For fifty years, throughout the administrations of six different U.S. Presidents, the federal rule worked well. And it reversed some of the country’s most egregious environmental sins. Then, in 2001 and again in 2006, SCOTUS began taking court cases with huge implications for the future of the Clean Water Act. Its rock-solid protections were eroded by unfavorable court decisions, and the clarity that had made the CWA such an effective safeguard for so many years was muddied…
In response to the confusion brought about by these court cases, the Obama-era EPA proposed the so-called Waters of the U.S. Rule—commonly known as WOTUS. This 2015 rule sought to clarify and re-establish lost protections for hundreds of thousands of miles of ephemeral streams and tens of thousands of acres of wetlands. It was widely supported by the vast majority of America’s hunting and angling conservation groups. But its opponents had immense power in the mining, agribusiness, and development sectors. That lobby’s boisterous campaign to undermine WOTUS was widely successful, and in 2019 President Trump decried the rule as “horrible”, scaling back its protections for ephemeral streams and isolated wetlands once again. Then, when current President Joe Biden took office, his EPA administrator rebuilt WOTUS, restoring its protections to pre-Trump levels. That’s more or less where the rule remained until yesterday…
“The wetlands on the Sackett property are distinguishable from any…waters [that are covered under the CWA],” wrote Justice Samuel Alito, because they aren’t visibly connected to them. Writing for the majority, Alito went on to say that, in order to be eligible for federal protections under the Clean Water Act, a wetland must have a “continuous surface connection with water, making it difficult to determine where the water ends and the wetland begins.”
“The Court is basically making the assumption that water only flows on the surface,” Trout Unlimited President and CEO Chris Wood tells F&S. “They’re making the assumption that there’s no such thing as groundwater, no such thing as sub-surface flow. It totally flies in the face of the scientific reality, and it’s a dangerous reading of the Clean Water Act.”
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According to TRCP’s Funk, the onus will now fall on individual states to enact whatever clean water protections they see fit. “Most states don’t have the resources to set up clean water programs and enforce those safeguards,” says Funk. “The whole model of the Clean Water Act was that the feds would provide that cooperative base level of protection for the states. With this ruling, that base just dropped considerably.”