Photo Courtesy of Baker University, Baker Wetlands at Sunset
By Elaine Giessel, Sierra Club Kansas Chapter Chair
On May 25th, the U.S. Supreme Court issued a ruling in Sackett v. EPA that narrowed the definition of what constitutes “Waters of the U.S.,” those water bodies which are protected under the Clean Water Act (CWA).
The focus of the case was federal authority to protect wetlands from development, pollution, and infilling. The court held that EPA could only regulate wetlands that have a “continuous surface connection” with a recognized jurisdictional waterway. The court rejected the EPA’s “ecological importance” arguments.
As a result of the ruling, many proposed projects will no longer require Section 404 permits to fill wetlands, which moderate floods, filter pollutants, store water, sequester carbon and provide critical wildlife habitat.
In addition, the ruling supported an earlier Court decision that the CWA covered “waters” related to “only those relatively permanent, standing or continuously flowing bodies of water…that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
The ruling could result in filling of unprotected isolated wetlands in Kansas, including temporary playa lakes which recharge groundwater and provide stopover habitat on the Central Flyway. Also at risk from pollution are the non-continuous, seasonal, and ephemeral streams that constitute the headwaters of our rivers which are our primary drinking water sources in Kansas.
In theory, states can set stricter protective measures, but Kansas has taken the opposite approach by joining a lawsuit seeking to overturn the broader rule released last year by the Biden EPA.
Sierra Club has vowed to fight for more protection of our nation’s waters: Sierra Club Statement on Sackett v. EPA Supreme Court Ruling | Sierra Club