The US Supreme Court decision could leave Georgia’s wetlands unprotected

The US Supreme Court recently ruled on a case that dealt a serious blow to conservationists by reversing federal protections for wetlands and seeking to exclude many areas of Georgia from federal oversight.

Increasing development across the state, as well as the controversial proposed mining plan in the Okefenokee Swamp, has brought wetland protection to the forefront of Georgians. The Sackett v. EPA decision could clarify which areas of Georgia are protected and which are not, and facilitate wetland development.

FILE: Michael and Chantell Sackett of Priest Lake, Idaho stand trial in the Supreme Court in Washington on October 14, 2011.  The Supreme Court ruled Thursday, May 25, 2023 in favor of the Idaho couple who wanted to build a home near Priest Lake in the state's Panhandle.

What was the case?

In 2007, the Sackett family in Idaho sued the US Environmental Protection Agency for rights to fill wetlands on their property to build a home near Priest Lake. The family had filled in wetlands for the project, but was later told they had violated federal law because the wetland had a groundwater connection to the lake and that they would have had to obtain a federal permit.

Her lawsuit against the EPA asserts that the wetlands on her property are not subject to federal jurisdiction and tests the pale boundaries for what the agency can consider federally protected wetlands.

In an opinion written by Judge Samuel Alito and joined by four other conservative judges, the court ruled that the federal government’s jurisdiction includes only wetlands that have a “continuous surface connection” with a major body of water and are thereby “indistinguishable” from them big body.

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This limits EPA’s ability to control water pollution, since the wetlands at issue in the Sackett case still feed into the rivers and lakes, which are more explicitly covered by state pollution regulations.

According to Adam Orford, assistant professor of environmental, energy, and natural resource law at the University of Georgia School of Law, the decision reflects conservative sentiment in one of the last major U.S. Supreme Court decisions attempting to settle this issue, Rapanos v. United States, where Scalia authored a similarly limited interpretation of federal water jurisdiction.

FILE: A paddler inspects a cypress tree on Ebenezer Creek in Effingham County.  While the Clean Water Act provides protection for larger bodies of water like Ebenezer Creek, recent federal regulations have challenged the protection of smaller creeks and wetlands in the region and were affected in the Sackett v. EPA decision.

In Georgia, not all wetlands are equally protected

According to Orford, the decision will have a major impact on Georgia’s wetlands, particularly those outside the coastal region. Georgia’s wetlands extend well beyond the coastal swamps, including wetlands in river basins across the state and the mountain seeps and bogs of Georgia’s northern region.

He said the case stems from the Clean Water Act, specifically the language it uses to explain which bodies of water the U.S. federal government has jurisdiction over. These are called “Waters of the United States”, also abbreviated to WOTUS.

“It’s a pretty broad term that’s not well defined,” Orford said. According to Orford, since the law began in the 1970s, there has been a great deal of litigation to clarify the unclear legal framework for which areas fall under this definition and which do not. In Georgia, residents have seen this debate in the back-and-forth between developers and the US Army Corps of Engineers over whether the Okefenokee Swamp is federally protected.

But different wetlands in Georgia enjoy different levels of protection, Orford said. On the coast, Georgia has a statute called the Coastal Marshlands Protection Act, which regulates nearby activities to ensure marshland quality and prevent pollution. It is a higher level of maintenance than Georgia’s highland wetlands such as mountain bogs. With the Sackett decision, he said the state could see how state conservation efforts could prevent wetland loss in some locations better than others, but ultimately wetlands throughout Georgia would be exempt from federal protection and vulnerable to destruction.

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Conservationists worry about future pollution

Conservationists argue the decision will increase the risk of pollution of waterways across the state, which serve as sources of drinking water and recreational spaces.

“The health of these rivers depends on the health of the thousands of streams that feed rivers, and the health of those streams depends on healthy, functioning wetlands,” said Rena Peck, executive director of the Georgia River Network. “Wetlands are the kidneys of our river systems and without them our rivers are ultimately life-sustaining.”

Both Peck and Orford of the UGA said that unless Congress takes action, only Georgia’s legislature and state-level legislation can strengthen protections in Georgia.

“The Sackett v. EPA case was brought by developers who, along with many industrial polluters, asked the court to overturn decades of bipartisan consistent practice and drastically limit the scope of the Clean Water Act,” the Southern Environmental Law Center wrote in a press release accompanying the decision. The group reiterated that there will be increased pollution and flooding due to the reduction in wetlands, and that the decision ultimately severely undermines the government’s ability to enforce the Clean Water Act.

But not everyone agrees. The decision could be a boon to those looking to settle in wetlands or bypass procedural issues from federal oversight. Republican Congressman Rick Allen of Georgia, covering part of eastern Georgia from Augusta down to Effingham County, said in a press release that “12 farmers, producers and landowners in Georgia (Congress District) got a much-needed victory… with the Supreme Court ruling in favor of Michael and Chantell Sackett. He argued that the Biden administration’s wetland policy was overblown and did not respect property rights.