In a 5-4 decision this week, the U.S. Supreme Court limited the federal government’s authority to regulate certain waters and wetlands under the Clean Water Act.
The following environmental law experts at the Tulane Institute on Water Resources Law and Policy are available to speak on the wide-ranging implications of the Sackett v. Environmental Protection Agency decision:
Haley Gentry, senior research fellow
hgentry@tulane.edu
Christopher J. Dalbom, assistant director and senior research fellow
cdalbom@tulane.edu
Mark Davis, director
msdavis@tulane.edu
The Institute provides law and policy analysis to decision makers and the public to ensure that water and the ecosystems it supports are maintained for future generations while providing for the needs of people. Here is the Institute’s response to today’s ruling:
Today, the U.S. Supreme Court announced its decision in the long-awaited Sackett v. Environmental Protection Agency case. This decision removes federal protections for a significant portion of the nation’s wetlands, marking an end to regular Clean Water Act practices that date back to the 1970s. Justice Alito, writing for the Sackett v. EPA majority, sets forth what the Supreme Court deems the proper test for determining when a wetland is considered a “water of the United States” (WOTUS) and thus subject to federal regulation under the Clean Water Act. The Court reversed the 9th Circuit decision, holding that only wetlands with continuous surface connections are subject to the Act’s permitting requirements.
It has always clear that the Clean Water Act covers adjacent wetlands, but the standard employed to determine what “adjacent” means has been the subject of constant litigation and rulemaking. The Army Corps and EPA have been using a standard referred to as the “significant nexus” test for WOTUS determinations since the split decision in Rapanos v. United States in 2006. Rapanos dealt with a similar issue in Sackett, but no majority was reached— Justice Kennedy argued for a significant nexus standard, and Justice Scalia argued for a continuous surface connection test. Today, Justice Alito purports to adopt the “continuous surface connection” standard from the Rapanos but ultimately reconfigures the definition of adjacent to mean directly touching and adjoining. Going forward from today, only wetlands with a “continuous surface connection” that are “indistinguishable from waters of the United States” may be regulated. So, the now-regulated wetlands are not wetlands at all, simply the edges of the water bodies themselves. The Court takes this limitation to the extreme by indicating that any man-made or natural separation between a traditional WOTUS and a wetland will preclude regulation due to lack of a surface connection.
While there are questions of the practical application of this new standard, it likely means that any leveeing, road construction, berm, dune, etc. will remove federal protection for those wetlands. Justice Kavanaugh’s concurrence in Sackett disagrees with the new standard. He uses the Mississippi River as an example of how serious the consequences of the decision might be. Wetlands are crucial for flood control. Wetlands also filter pollutants and improve water quality simply by existing. Allowing the unregulated filling and development of wetlands could have dire consequences in the Mississippi Valley and across the country.
The decision itself and its language invalidating the recent WOTUS rule will certainly cause regulatory confusion. And the majority opinion fails to account for variations due to climate change, droughts, when man-made constructions preclude jurisdiction, among others.
In the coming months, the impacts and responses at the state level will also cause uncertainty and confusion. Roughly half of the states rely on the federal government’s definition of WOTUS. Thus, a substantial amount of our nation’s wetlands will lose all protection. Some states may eventually pass legislation to regulate wetlands in their borders. But many of these states have laws the prohibit regulating waterways and water quality more stringently than the federal government. It goes without saying that water does not follow political boundaries. States will take vastly different approaches without a sufficient federal floor for wetland protection, and the impacts will be felt throughout watersheds. Today’s opinion represents a huge setback in our efforts to protect habitats, improve water quality, and combat flooding. Climate change impacts are only becoming more severe, and this attack against federal environmental law and agency authority will have tremendous consequences.
The Tulane Institute on Water Resources Law & Policy will continue to research and publish on this matter and identify ways in which this decision will affect our nation’s health as well as ways in which protections can be restored at local, state, and federal levels.
