Attorney General Bonta Urges Supreme Court to Uphold Federal Protections for Wetlands

Monday, June 20, 2022
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OAKLAND – California Attorney General Rob Bonta joined a multistate coalition in an amicus brief before the U.S. Supreme Court in defense of federal protections for wetlands. In Sacketts v. U.S. EPA, the Supreme Court will consider the scope of “waters of the United States” under the Clean Water Act and whether a narrower definition of protected waterways should be adopted. In the brief, the coalition argues that denying wetlands federal protection would undermine the Clean Water Act’s goal of improving water quality and protecting states like California from upstream pollution.

“California relies on our waterways to sustain our communities, our economy, and our biodiversity,” said Attorney General Bonta. “As California confronts a once in a century drought, it is essential that our ability to protect our waterways remains intact. Wetlands have a critical and long acknowledged role in maintaining the integrity of downstream waterways from upstate polluters. I urge the Supreme Court to uphold the longstanding and commonsense reading of the Clean Water Act’s text and purpose that has been adopted by the EPA, the Army Corps of Engineers, and federal courts. Wetlands deserve federal protection.”

The definition of “waters of the United States” under the Clean Water Act is critical to maintaining a strong federal foundation for water pollution control and water quality protection that preserves the integrity of our waters. While the Clean Water Act has resulted in dramatic improvements to water quality in the United States, its overriding objective has not yet been achieved. Many of the nation’s waters fail to meet water quality standards. 

Justice Kennedy’s concurrence in the Supreme Court case of Rapanos v. United States sets out the “significant nexus” test, which said that waterways that connect to or have a significant impact on navigable waters are protected under the Clean Water Act. The EPA and the U.S. Army Corps of Engineers relied on this interpretation, which is supported by the Clean Water Act’s text, history, and purpose, when they expanded the definition of “waters of the United States” in 2015 to include the headwaters of rivers and creeks as well as other non-traditionally navigable waters, such as wetlands and ephemeral streams, which have significant impact on downstream water quality.

In the brief, the coalition describes how wetlands play a significant role in maintaining water quality, quantity, and biological integrity of navigable waters, trapping and neutralizing pollutants, controlling surface-water runoff and erosion, and preventing floods. Wetlands therefore meet the “significant nexus” test and are protected waters under Clean Water Act permitting programs. Eliminating federal protections for these waterways would cause significant harms to downstream states like California, who rely on the Clean Water Act to safeguard against the negative impacts of pollution from upstream states on our state's drinking water, wildlife habitat, agriculture, and recreation.

Attorney General Bonta joins the attorneys general of New York, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Vermont, Washington, and Wisconsin in filing the brief.

A copy of the brief is available here.

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