Statement of Ashley Wilmes, Executive Director of the Kentucky Resources Council, in response to U.S. Supreme Court Decision in Sackett v. EPA.
The 5-4 decision of the U.S. Supreme Court in the case of Sackett v. EPA decided on May 25, 2023, represents a disappointing setback for the decades-long national effort to restore, protect, and maintain water quality. The Court established a more stringent test to determine whether the Clean Water Act applies to a wetland, ruling that the Act only protects “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. As Justice Kavanaugh noted in his concurring opinion, this holding departs from the text of the Clean Water Act, 45 years of consistent EPA practice, and prior Supreme Court rulings, and will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.
The enactment of the Clean Water Act in 1972 represented a bipartisan commitment to ending pollution and to protecting the wide range of uses and values of our nation’s rivers, streams and lakes, and those adjacent wetlands that are integral to the health and maintenance of those water resources. The Supreme Court’s 5-4 decision fails to respect both the plain language of the federal law and the consequences of the new uncertainty injected into the scope of the Act by redefining what is “adjacent” in such a narrow manner. While an unfortunate step backwards, the Sackett decision does not prevent state and local communities and their governments from taking action to assure continued protection of those wetland resources that may now fall outside of federal protection under the Clean Water Act, nor private and public non-governmental efforts at wetland protection and restoration.
KRC calls on our Congressional delegation to act promptly to clarify for the Courts that the Clean Water Act’s protections extend to all wetlands that are hydrologically connected to covered waters, including those separated from covered waters by man-made and natural berms and barriers. Sackett raises many questions regarding the scope of protection for Kentucky’s wetlands, and KRC will be there to advocate for the broadest federal wetland protections possible in light of that decision.
We stand ready to assist communities and individuals who are downstream from pollution, flooding, and other damage from the filling or destruction of wetlands.
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