On May 25, the U.S. Supreme Court eliminated a major swath of CWA protections when it issued its decision in Sackett v. Environmental Protection Agency. In the Court’s view, the CWA extends to only those "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right," such that they are indistinguishable from those waters. This represents a dramatic and unprecedented retreat by the Court from the understanding of “wetlands adjacent thereto,” which had been adopted by the executive via regulation and accepted by the U.S. Congress for the past several decades. But, writes Prof. Cale Jaffe in Sackett and the Unraveling of Federal Environmental Law, “the sheer breadth of wetland protections that have been lost is matched only by the remarkable scope of judicial authority that has been expanded.” As such, the Court’s decision may pose an even bigger threat for federal environmental law writ large.
Looking at the black-letter text of the CWA, Congress clearly chose the word “adjacent” to describe covered wetlands. Similarly, the U.S. Army Corps of Engineers had been clear in affirming a hydrological need to protect at least some non-abutting wetlands. Yet, the Court deferred to none of this. “So much for the Court’s co-equal branches of government,” writes Jaffe.
Of course, EPA still maintains authority over discharges from discrete “point sources” under §301 of the Act. As such, the federal government is not entirely out of the wetlands protection game. But a massive retrenchment of federal regulatory authority over wetlands seems unavoidable. Some experts have begun looking to state water control laws to deal with this retreat. Prof. Deborah Sivas observed that California’s water protection program “arguably provides sufficient authority for regulating even intermittent and isolated wetlands” going forward. Other states, however, might not be so lucky. ELI’s James McElfish surveyed state-law regimes and found that 24 states—representing the lion’s share of the country by acreage—“rely entirely on the federal Clean Water Act for protection of these waters and do not independently protect them.” These early assessments of Sackett underscore two vital points: much has been lost for wetlands protection, and much has changed with respect to the Court’s broader environmental law jurisprudence.
Looking ahead, Jaffe predicts that the Court’s antiregulatory rollback will filter down to affect other environmental laws like NEPA, the ESA, and the National Historic Preservation Act. Reviews under those federal statutes are often prompted by a jurisdictional determination on “adjacent” wetlands under the CWA.
Notably, the Sackett test was the minority view 17 years ago when the Court issued its ruling in Rapanos v. United States. In our post-Sackett world, an entire regime of interrelated, environmental protections drafted by Congress over the past half-century stands on shakier ground.
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