Wetlands at Lake Conestee Nature Preserve (Photo credit: Yvonne Jones)

The Water Log: July 2023

Hello Clean Water Partners,

In this issue of the Water Log, we will be discussing the United States Supreme Court’s ruling on the Sackett v. EPA case and the consequences of this catastrophic decision. Additionally, we will touch on how waterways in the Upstate will be impacted as a result of this ruling. 

The United States Supreme Court made a ruling on the Sackett v. EPA case on May 25th that was an unequivocal blow to decades of efforts to restore and maintain the integrity of the nation's waters. By overturning federal protections for wetlands, SCOTUS made waterways vulnerable to pollution and harmful development.  

Read on to learn more. We appreciate your dedication to protecting our region's precious water resources. 

Sincerely,

Erika J. Hollis

Clean Water Director

Upstate Forever

Wetlands in Hilton Head Island, South Carolina (Photo credit: CS Engineer Media)

Sackett v. EPA Ruling

On May 25, 2023, the Supreme Court ruled that as many as half of the 118 million acres of wetlands in the country cannot be protected by the Clean Water Act (CWA). The purpose of the CWA was to protect our navigable waters from pollution that was causing major harm in the 1960's. Visit the April 2022 Water Log Blog Post for the team's deep dive on the CWA.

In the case of Sackett v. EPA, the owners of the property, Michael and Chantel Sackett sought to develop property with plans to build a house a few hundred feet from Priest Lake, a popular vacation spot in the Idaho Panhandle. To prepare the site for construction, the Sacketts began to fill the lot with gravel. In response to a neighbor's complaint in 2007, the EPA halted the work after determining that the Sacketts' lot contained a federally protected wetland.

Under the authority of the CWA, the agency ordered the couple to remove the gravel and cease any further construction without a permit. In response, the Sacketts sued the EPA in 2008.

Over the next 14 years this case made its way through the federal court system and ultimately to the Supreme Court where the defense argued that the wetland the Sacketts filled was not a protected water of the United States because there was dry land between it and other bodies of water -- and thus not subject to EPA regulations.

The wetlands on the Sacketts' property (Photo credit: Pacific Legal Foundation)

Ultimately, it was determined that the wetlands on the Sackett property were not protected under the CWA. The Supreme Court came to their decision by asserting that the CWA protects waters that the 'majority' characterized as relatively permanent standing or continuously flowing bodies of water forming geographical features defined as streams, rivers, lakes and oceans.

The 'majority' went on to determine that only those wetlands that are indistinguishable from the bodies of water stated above were protected by the law under the CWA. Therefore, to protect a wetland under the CWA one must prove a surface water connection to a constantly flowing system, and it must have a continuous surface water connection with that system. This interpretation of the regulation is in direct opposition to the basic scientific understanding of wetlands, which can migrate, maintain below-ground connections, and serve as parts of larger watersheds not continuously connected by surface waters.

Alaska's Bristol Bay -- The EPA is currently in the process of vetoing the Pebble Mine using the Clean Water Act. Without wetland protections, the development of this mine would pose a critical threat to these wetlands. (Photo Credit: EPA)

Consequences of this ruling

Under this new ruling the law will only provide federal jurisdiction to wetlands that are linked to major water bodies through surface connections. This decision defies the science that confirms critical underground connections of wetlands through groundwater systems. These wetlands are essential for fish and wildlife habitat in addition to protecting our quality of life by preventing and mitigating floods, filtering pollutants before they reach other bodies of water, supporting forestry, and being a means for recreation.

In addition to the benefits that isolated wetlands provide, they are also more prone to pollution as they are often adjacent to harmful land use practices. This new ruling puts these critical water bodies in jeopardy as it opens up all isolated wetlands to developers, mining companies, and other polluting industries that will harm our local environments and water quality.

Cypress trees harvest for wood pellet production in a wetland in Ahoskie,

North Carolina

(Photo credit: Adam Colette)

Local Impacts

In the state of SC, wetlands make up 20% of the land statewide, with 6% of those wetlands located in the Upstate. Our unique Upstate wetlands provide important benefits to our state's water resources by helping protect SC's headwaters, which include drinking water resources. While isolated wetlands are very common, they are not often visible to the public.

Generally, isolated wetlands are smaller in size and aren't typically discovered until a property is being surveyed for development. Prior to the Supreme Court ruling, a case could be made for the protection of the wetland if it was within a certain distance from a waterway.

Under this new ruling, there are no such protections for isolated wetlands, which opens them up for development and other harmful land use practices. The consequences of this new interpretation of the CWA will be profound as more urban areas are developed and land is paved over and converted to impervious surfaces. Without wetlands to slow down and filter runoff we will see more flooding and an increase in the number of polluted waterways in our communities.

Most unfortunately, more vulnerable and low-income residents who live in flood zones will experience these hazards at a higher rate. This is because many vulnerable communities reside within floodplains. Without our isolated wetlands to absorb and filter heavy rains, surges in flood waters are likely to threaten property and livelihoods of residents living closer to our waterways and flood zones.

As we start to make a path forward, it is critical that we as Upstate residents remain vigilant and empowered to advocate for the importance of wetlands in our communities. Without federal protections, many of our region's precious isolated wetlands are left exposed to the increasing demands of development. It is important to note that individual states can choose to enact stronger wetland protections as the CWA is considered just a starting point for protecting waterbodies. Therefore, we urge our readers to stay informed on this issue and reach out our state elected officials to request expanded protections for wetlands in SC.

The Reedy River Wetlands Preserve at Unity Park in Greenville

(Photo credit: City of Greenville)

Project Update

The Clean Water Team is pleased to announce that we were awarded funding for Phase 2 of the implementation effort for Three and Twenty Creek Watershed in Anderson and Pickens counties from SC Department of Health and Environmental Control (SCDHEC)! With this second phase of funding, we are thrilled to continue helping landowners in this area with the cost of installing important water quality projects like septic system repairs, agricultural projects, stream bank repairs, and land protection to help protect water quality.

For more information about this project and others, visit our website.

A stream bank repair project at Boscobel Golf Club completed during Phase 1 of our SCDHEC funded Three & Twenty grant project.

Until next time 

Thank you for signing up to receive The Water Log, Upstate Forever’s email newsletter dedicated to Clean Water news, issues, and information. We appreciate your interest and dedication to safeguarding the Upstate’s water resources.  

If you have any questions about this topic or would like to learn about another Clean Water issue in a future edition, please contact me at ehollis@upstateforever.org. 

Upstate Forever is a nonprofit conservation organization that protects critical lands, waters, and the unique character of Upstate South Carolina.  Over the past two decades, we have worked to protect the natural assets that make the Upstate so special — our farmlands, forests, natural areas, rivers, and clean air. We are committed to ensuring that our communities are vibrant and retain their green spaces, outdoor heritage, and unique identities in the face of rapid development and significant sprawl. Our vision is an environmentally healthy, economically prosperous Upstate that offers a high quality of life now and for future generations.

Watershed Implementation grants were funded wholly or in part by the US EPA under a Section 319 Grant through the SC Department of Health and Environmental Control (SC DHEC).

For more information, visit our website at upstateforever.org or send us an email.