{"id":33951,"date":"2023-05-26T01:37:00","date_gmt":"2023-05-26T01:37:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=33951"},"modified":"2023-07-02T07:49:28","modified_gmt":"2023-07-02T07:49:28","slug":"the-supreme-court-just-shriveled-federal-protection-for-wetlands-leaving-many-of-these-valuable-ecosystems-at-risk","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/the-supreme-court-just-shriveled-federal-protection-for-wetlands-leaving-many-of-these-valuable-ecosystems-at-risk\/","title":{"rendered":"The Supreme Court just shriveled federal protection for wetlands, leaving many of these valuable ecosystems at\u00a0risk"},"content":{"rendered":"\n

Albert C. Lin<\/a>, University of California, Davis<\/a><\/em><\/p>\n\n\n\n

The U.S. Supreme Court has ruled in Sackett v. EPA<\/a> that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.<\/p>\n\n\n\n

Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year<\/a>, so they straddle this division of authority.<\/p>\n\n\n\n

Swamps, bogs, marshes and other wetlands<\/a> provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material<\/a>, such as dirt, sand or rock, in a protected wetland.<\/p>\n\n\n\n

This can be time-consuming and expensive, which is why the Supreme Court\u2019s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act \u2013 namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.<\/p>\n\n\n\n

For the last 45 years \u2013 and under eight different presidential administrations \u2013 the EPA and the Corps have required discharge permits in wetlands \u201cadjacent\u201d to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk<\/a>. https:\/\/www.youtube.com\/embed\/bFGMoFIjKRM?wmode=transparent&start=1 The U.S. has lost more than half of its original wetlands, mainly due to development and pollution.<\/p>\n\n\n\n

The Sackett case<\/h2>\n\n\n\n

Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state\u2019s largest lakes<\/a>. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot<\/a>, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.<\/p>\n\n\n\n

In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland<\/a>.<\/p>\n\n\n\n

In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA\u2019s order and sent the case back to the lower courts<\/a>. After losing below on the merits<\/a>, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?<\/p>\n\n\n\n

\"Homes<\/a>
Housing encroaches on Caloosahatchee River wetlands in Fort Myers, Fla. Jeffrey Greenberg\/Universal Images Group via Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

What are \u2018waters of the United States\u2019?<\/h2>\n\n\n\n

The Clean Water Act regulates discharges of pollutants<\/a> into \u201cwaters of the United States<\/a>.\u201d Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the act<\/a> for dredged or fill material, or Section 402<\/a> for other pollutants.<\/p>\n\n\n\n

The Supreme Court has previously recognized that the \u201cwaters of the United States\u201d include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections<\/a> to larger water bodies.<\/p>\n\n\n\n

In 2006, when the court last took up this issue, no majority was able to agree on how to define \u201cwaters of the United States.\u201d Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly<\/a> to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include \u201cordinarily dry channels through which water occasionally or intermittently flows.\u201d<\/p>\n\n\n\n

Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach \u201conly those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.\u201d<\/p>\n\n\n\n

In a concurring opinion, Justice Anthony Kennedy took a very different approach. \u201cWaters of the U.S.,\u201d he wrote, should be interpreted in light of the Clean Water Act\u2019s objective of \u201crestoring and maintaining the chemical, physical, and biological integrity of the Nation\u2019s waters.\u201d<\/p>\n\n\n\n

Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a \u201csignificant nexus\u201d with navigable waters \u2013 \u201cif the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as \u2018navigable.\u2019\u201d<\/p>\n\n\n\n

Neither Scalia\u2019s nor Kennedy\u2019s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy\u2019s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy\u2019s standard or Scalia\u2019s is satisfied<\/a>.<\/p>\n\n\n\n

Regulators have also struggled with this question. The Obama administration incorporated Kennedy\u2019s \u201csignificant nexus\u201d approach into a 2015 rule<\/a> that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment<\/a>. The Trump administration then replaced the 2015 rule with a rule of its own<\/a> that largely adopted the Scalia approach<\/a>.<\/p>\n\n\n\n

The Biden administration responded with its own rule<\/a> defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation<\/a> and will require reconsideration in light of Sackett v. EPA.<\/p>\n\n\n\n

The Sackett decision and its ramifications<\/h2>\n\n\n\n

The Sackett decision adopts Scalia\u2019s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that \u201cwaters of the United States\u201d includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes \u2013 and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.<\/p>\n\n\n\n

None of the nine justices adopted Kennedy\u2019s 2006 \u201csignificant nexus\u201d standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority\u2019s \u201ccontinuous surface connection\u201d test. That test, Kavanaugh wrote in a concurrence<\/a>, is inconsistent with the text of the Clean Water Act, which extends coverage to \u201cadjacent\u201d wetlands \u2013 including those that are near or close to larger water bodies.<\/p>\n\n\n\n

\u201cNatural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,\u201d Kavanaugh explained. \u201cBy narrowing the Act\u2019s coverage of wetlands to only adjoining wetlands, the Court\u2019s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.\u201d<\/p>\n\n\n\n

The majority\u2019s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.<\/p>\n\n\n\n

The court\u2019s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans \u2013 including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.<\/p>\n\n\n\n

Congress could amend the Clean Water Act to expressly provide that \u201cwaters of the United States\u201d includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled<\/a>, and today\u2019s closely divided Congress is unlikely to fare any better.<\/p>\n\n\n\n

Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of \u201cwaters of the United States<\/a>.\u201d In many instances, new legislation \u2013 and perhaps entirely new regulatory programs \u2013 will be needed.<\/p>\n\n\n\n

Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court\u2019s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress\u2019 authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.<\/p>\n\n\n\n

This is an update of an article<\/a> originally published on Sept. 26, 2022.<\/em><\/p>\n\n\n\n

Albert C. Lin<\/a>, Professor of Law, University of California, Davis<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Albert C. Lin, University of California, Davis The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. […]<\/p>\n","protected":false},"author":44,"featured_media":33952,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1862],"tags":[2699,100,12635,1783,4624,11188,4828,1026,4886,5824,12662,2700,169,1684,1784,573],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/33951"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=33951"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/33951\/revisions"}],"predecessor-version":[{"id":34280,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/33951\/revisions\/34280"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/33952"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=33951"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=33951"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=33951"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}