A recent decision from the U.S. Supreme Court on the Clean Water Act has water watchers cautiously waiting to see how states will respond in protecting quality in waters previously covered by the federal government.

The case Sackett v. Environmental Protection Agency redefines the terms by which a body of water can be protected under the Environmental Protection Agency’s “Waters of the United States” rule.

The high court in May ruled 9-0 in favor of the Sacketts, an Idaho couple who in 2004 bought land on which they wanted to put a home. The parcel was located about 300 feet from Priest Lake, one of the state’s largest. They began backfilling the lot with dirt and gravel, which earned them the attention of the EPA. The agency said the land contained a protected wetland. Racz said the wetlands were across a paved road, connected by a ditch and creek to Priest Lake. 

The EPA blocked that development, in part because the Sacketts did not obtain a permit for dredging and filling from the U.S. Army Corps of Engineers, which manages wetlands. The federal agency issued a compliance order with the threat of fine of $40,000 per day.

The Sacketts sued, a process that took more than 14 years to reach the U.S. Supreme Court. The high court heard oral arguments last October before unanimously ruling on the case.

The majority opinion, authored by Justice Samuel Alito, relied on a 2006 opinion in Rapanos v. United States from Justice Antonin Scalia. That viewpoint held “any wetland that does not connect at its surface to another body of federally protected water doesn’t merit the same degree of protection.”

Alito noted “the wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”

Colorado Attorney General Phil Weiser filed an amicus brief in defense of the EPA. In a statement following the decision, Weiser said the court’s ruling turned a state/federal partnership to protect streams and wetlands “on its head.”

“The court’s new definition of waters of the United States will return our nation to a patchwork of rules and undermine water quality protection efforts in Colorado,” Weiser said. “And it will do so without the benefit of a transition period to give states and regulated parties time to adjust to a new regime that will have to replace the existing one.”

Weiser believed the court’s new test for which waters would be protected by the Clean Water Act would strip streams and wetlands in Colorado of federal protections because those waterways “are temporary in nature, lack year-round flow, and don’t have a continuous surface connection to navigable waters.” Colorado would have to step in to address the impacts of dredge and fill activities that in the past were managed by the U.S. Army Corps of Engineers, Weiser explained.

Attorney Gabe Racz of the firm Vranesh and Raisch and Carrie Noteboom of the Colorado Attorney General’s Office discussed the May 25 decision and what comes next during a Tuesday session of the Colorado Water Congress’ summer conference.

Noteboom said Colorado maintains many interests in the rule, including water quality and species protection; water rights administration; interstate compact obligations; agricultural interests; recreation economy interests; regulatory certainty, state resource constraints and climate change. The court didn’t need to decide for all waters, she said. This was a case about adjacent wetlands. 

How that affects Colorado: Two-thirds of Colorado’s waters are temporary in nature and lack year-round flow. A large percentage of wetlands are not connected to perennial streams by surface flows, she added. 

A new EPA final rule will be issued Sept. 1, Noteboom said, adding: “We’re be curious to see how it grapples with our permanent waters.” 

The state is also seeking input on how to figure out what to do next, Noteboom said.

“The court threw a large segment of water quality protection back to the states under Sackett, and the state must now figure out what kind of water quality program it wants going forward,” she said. That’s a responsibility tasked to the Water Quality Control Division of the state Department of Public Health and Environment. 

Noteboom explained the state has its own program for wastewater treatment and other related pollution control. It will now have to come up with one for dredge and fill projects for waters no longer deemed to be under the protection of the EPA rule and previously managed under the US Army Corps of Engineers. The regulatory universe of the EPA rule no longer applies to a large percentage of Colorado’s waters, she said. 

It’s also something that is likely to show up in front of Colorado’s General Assembly sooner rather than later, Racz added.

Racz said “it’s the job of the legislature to make sure” the indecision created by Sackett doesn’t take place. Congress created the problem by originally using the term “navigable waters,” a overly-broad phrase that has led to decades of legal fights, he said. Any legislature that will create a regulatory program will need specificity.

The big lesson of Sackett, Racz said: “If something is too vague, you leave decisions up to the courts that they shouldn’t be deciding.”