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Following Sackett v. EPA, Surfrider looks to Congress and States to Protect Wetlands

The Surfrider Foundation is deeply saddened by a recent decision from the country’s highest court that significantly narrows federal protections for the nation’s wetlands. The May 25, 2023 decision, in Sackett v. Environmental Protection Agency, goes beyond determining whether one particular property in Idaho contains what qualifies as a wetland subject to Clean Water Act protections, and creates a new, narrower test for determining whether wetlands will qualify for protections under the Act.    

Under the decision, the Clean Water Act, which generally prohibits discharging pollutants into and filling protected waters, will extend to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to “adjacent wetlands.” (Sackett v. EPA, majority, p. 14) And under the majority’s new test, to be considered “adjacent,” wetlands must be “indistinguishable from waters of the United States.” As the court writes, this requires that, first, the adjacent body of water constitutes a ‘water of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” “In other words, they must be “indistinguishably part of” an otherwise protected water like a stream, ocean, river, or lake. (Id., at 22)  The majority opinion eliminates the prior Court’s “significant nexus” test, which provided an additional basis for establishing jurisdiction over adjacent wetlands (i.e. where a wetland, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of those waters).

This is a significant blow to water quality and coastal resources. Wetlands provide critical functions like filtering water pollution and flood reduction. At a time when the U.S. should be more proactive to address climate impacts on our water and coastal resources, this decision, reducing protections for our wetlands, flies in the face of sound science, and will increase water pollution and flooding risks, and threaten coastal resources and recreation treasured by Surfrider, our members, and supporters. 

While all nine justices agreed in this case that the property owner plaintiffs’ property did not contain a wetland (contrary to the District Court and Ninth Circuit Court of Appeal), four justices strongly disagreed with the majority’s reasoning and its new test for “adjacent” wetlands in strong concurring opinions. 

Justice Kavanaugh and Justice Kagan’s opinions concurring in the judgment only (with whom Justices Sotomayor, Kagan, and Jackson; and Sotomayor and Jackson, joined, respectively), correctly assert that “adjacent” doesn’t mean “adjoining,” as the new test effectively requires. “Adjacent” means neighboring, whether or not touching; so for example, a wetland is adjacent to a water on the other side of a sand dune.”  (Kagan, E., concurring in judgment, p. 4) 

Justice Kavanaugh notes that such an interpretation has applied for nearly half a century, since 1977, when Congress explicitly amended the Act to include “adjacent wetlands.” “[T]hroughout those 45 years and across eight Presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.” (Kavanaugh, B., concurring in judgment, p. 6). “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s 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.” As just two examples, Justice Kavanaugh’s opinion specifically notes concerns regarding impacts to the Chesapeake Bay as well as the Mississippi River watershed, where considerable wetlands may lose federal protection due to the presence of manmade levees. Justice Kavanaugh emphasizes how nonsensical this result is, given that those barriers are often evidence of a significant connection between a wetland and a covered water. (Kavanaugh, B., concurring in judgment, p. 6). Those are just two noted examples, while the full impacts of this decision will be far reaching throughout watersheds.    

Justice Kagan’s concurrence likened the majority’s action here – “rewrite[ing] Congress’s plain instructions because they go further than preferred” - to another recent decision, in last year’s West Virginia v. EPA, 597 U. S. __ (2022). “It is an effort to cabin the anti-pollution actions Congress thought appropriate.” (Kagan, E., concurring in judgment, p. 5) Justice Kagan poignantly concludes her opinion with precisely the same wording as she concluded her opinion in West Virginia, save for one word – water. 

“So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. “[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” Id., at ___ (slip op., at 32).”  (Kagan, E., concurring in judgment, p. 6).

The decision likewise usurps the authority of the expert agencies tasked with carrying out the Act – the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers. The EPA issued a statement, expressing its disappointment with the decision and affirming its commitment to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water.  Following this decision, the EPA is anticipated to revise its “waters of the U.S.” (or “WOTUS”) regulations defining waters protected by the Act. The definition of WOTUS has already had a storied history, and this is certainly a disappointing development. President Biden has denounced the decision and affirmed the Executive Branch’s commitment to protecting clean water, saying, “My team will work with the Department of Justice and relevant agencies to carefully review this decision and use every legal authority we have to protect our Nation’s waters for the people and communities that depend on them. We will work with states, cities, and Tribal communities to pass and uphold critical protections for their residents.”

Surfrider and our partners will likewise continue fighting strongly for clean water and safe recreation for all people. Following this decision, we must call on our members of Congress to legislatively clarify their intent to broadly protect our nation’s wetlands, and meanwhile urge our state leaders to step in and act to protect our wetlands and waterways.