Posted on July 16th, 2022.

The Waterkeeper Alliance, San Francisco Baykeeper, Bayou City Waterkeeper, and 47 additional Waterkeeper groups from across the country have filed an amicus brief with the United States Supreme Court today to defend the Clean Water Act (CWA) from efforts to substantially narrow the definition of federally protected waters.

An amicus brief is a letter offering insight to a legal case, written by organizations that are not directly part of the case. Specifically, the advocates are arguing in support of the U.S. Environmental Protection Agency (EPA) in the case Sackett v. EPA, and asking the Supreme Court to uphold the Ninth Circuit Court of Appeals ruling about the scope of wetlands protected under the landmark environmental law.

“The Waters of the United States need strong and uniform protections, which Congress intended with the Clean Water Act, in order to create and maintain a healthy network of waterways,” said Eric Buescher, Senior Staff Attorney with San Francisco Baykeeper. “Shattering water quality laws across countless state and local jurisdictions will lead to a nationwide patchwork of sacrifice zones.”

The central question in Sackett v. EPA, which the Supreme Court will hear this fall, is what standard should apply to determine protection for wetlands that are adjacent to traditional navigable waters and their tributaries. The petitioners in the appeal have asked the Supreme Court to overturn the Ninth Circuit's ruling that adjacent wetlands, including those on their Idaho property, merit federal protection, which would advance a narrow interpretation of the CWA.

The 50-page amicus brief contends that, to achieve the law’s objective, it must protect all waters that make up aquatic ecosystems, not just navigable waters.

“Many iconic and significant waters across the country lack continuous surface connections to traditionally-defined navigable waters and could lose federal clean water protections that have been in place for nearly fifty years if the Court were to adopt the petitioners’ navigability theories,” said Kelly Hunter Foster, Senior Attorney with Waterkeeper Alliance. “Congress originally designed the CWA to broadly protect all waters of the United States—not only those used for commercial navigation. The scope cannot be narrowed if we are to ensure the integrity of the law and the health of our waterways.”

The Supreme Court, in rulings over the last fifty years, has recognized the CWA as a broadly reaching system of water pollution regulation that applies to virtually all bodies of surface water in the country. The law was enacted in 1972 to protect the health of the waters of the United States, promote healthy aquatic ecosystems, and regulate the discharge of pollutants into waterways. In the language of the statute itself, its purpose is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Congress intended for the CWA to be the overriding statute to protect the nation’s waters. Limiting its jurisdiction, as urged by the petitioners, could pollute and degrade waters of significant national importance, such as California’s San Francisco Bay, Idaho’s Snake River Closed Basin Trout Fisheries, New Mexico’s Closed Basin Recreational Waters, Oregon’s Crater Lake, and Texas’ Galveston Bay.

“We're two weeks into hurricane season in Houston and along the Texas coast,” said Kristen Schlemeer, Legal Director with Bayou City Waterkeeper. “How our wetlands and natural systems are protected directly affects how safe we are from flooding, storm surges, and climate change. We want the Supreme Court justices to understand that the Clean Water Act is this region's most important law for protecting our natural defenses. It must remain strong and intact.”

The filing organizations are not-for-profit environmental advocates dedicated to protecting and restoring water quality to ensure that the world’s waters are drinkable, fishable, and swimmable.

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