Supreme Court Rules Against Clean Water, Wetlands

News for Immediate Release
May 26, 2023
Contact: Katie McKalip, 406-240-9262, [email protected]

BHA maintains that wetlands and other waters with a significant connection to traditional navigable waters must retain Clean Water Act protections

WASHINGTON – The Supreme Court has ruled against clean water and wetlands, narrowing interpretations for the test that determines Clean Water Act protections under what are called “waters of the United States.” The ruling yesterday in favor of the plaintiff in Sackett vs. the Environmental Protection Agency eliminates safeguards for almost all of the nation’s wetlands and drastically reduces the EPA’s authority to protect other wetlands and waterways that provide valuable fish and wildlife habitat.

The Clean Water Act was enacted to restore and maintain the quality of U.S. waters and wetlands. In part, it regulates the discharges of pollutants into “navigable waters,” which is broadly defined as “the waters of the United States.” By restricting protections for waters to only those with a “continuous surface connection,” the Supreme Court dramatically reversed course on prior rulings that had protected any wetlands with a “significant nexus.” Many of these wetlands are connected to headwaters streams and systems that provide critical fish and wildlife habitat, such as playa lakes in the Southwest and the prairie pothole region in the Midwest that is North America’s “duck factory.”

In 2022, Backcountry Hunters & Anglers joined with groups including the American Fly Fishing Trade Association, Izaak Walton League, National Parks Conservation Association, National Wildlife Federation, Theodore Roosevelt Conservation Partnership and Trout Unlimited in filing an amicus brief in the Sackett case. Together, those groups, which represent millions of hunters, anglers, national park advocates and outdoor recreationists, argue that wetlands with a significant connection to traditional navigable waters must be included in Clean Water Act protections. They also maintain that the plaintiffs’ proposed interpretation of the landmark law relies on a flawed reading of the act’s text, structure and purpose.

“This ruling from the Supreme Court is a gut punch to fish and wildlife and the American people who just lost clean water protections for most wetlands across the country,” said John Gale, BHA vice president of policy and government relations. “Instead of seizing the opportunity to secure greater certainty for wetland systems and ephemeral and intermittent streams often connected to wetland complexes through surface and subsurface flows, the court has ensured future litigation and greater vulnerability for migratory birds, coldwater fisheries and millions of people who want cleaner, safer drinking water.

“For half a century, our nation has enjoyed a bipartisan commitment to wetlands and Clean Water Act protections,” stated Gale. “The court's decision has unraveled that legacy and eroded proven safeguards.”

The groups’ amicus brief outlines how the narrow interpretation proposed by Sackett would subject the majority of wetlands in the United States to industrial pollution without penalty and that state protections would not make up for the loss of federal protections. It underscores how narrowing the coverage of the Clean Water Act would have devastating effects on wetlands, rivers and streams, fish and wildlife habitat, and recreational opportunities for millions of hunters, anglers and recreationists.

Healthy rivers, streams and waterways are integral to the health of America’s public lands. The loss of clean water protections could have significant economic consequences for outdoor recreation, which supports $788 billion in consumer spending and more than 5 million jobs in the United States. More than 50 million Americans fished in 2019, where fishing and hunting contributed $200 billion to the U.S. economy.

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for our wild public lands, waters and wildlife

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