By: Seth Stroud
According to the United States Environmental Protection Agency (EPA), “wetlands are areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.”[i] Wetlands exist across the United States and serve many vital functions, such as purifying water, reducing flooding, preventing erosion, and serving as a habitat to numerous plant and animal species.[ii] Notably, around one-third of threatened or endangered species in the United States are dependent upon “wetlands for their survival” because of the wetlands vital functions.”[iii]
Further, “wetlands are a natural solution to … climate change.[iv] They absorb carbon dioxide, [which] help[s] slow global heating and reduce pollution.[v] [Thus, wetlands] have often been referred to as the ‘Kidneys of the Earth.’”[vi] Scientific estimates show that conserving and restoring wetlands “and allowing coastal wetlands to naturally migrate” could substantially reduce carbon dioxide and methane emissions.[vii] However, wetlands are diminishing, and their carbon sequestration comes undone when they are destroyed, resulting in the emission of previously stored carbon.[viii]
The Clean Water Act (CWA) covers navigable waters, defined as “‘waters of the United States,’” or WOTUS, and it confers the EPA jurisdiction over such waters including wetlands.[ix] However, the EPA acknowledges that there is no definition for WOTUS in the CWA, which means that the EPA must promulgate regulations to define and clarify WOTUS.[x] Because the definition of WOTUS is continually evolving under EPA regulations, it is not surprising that the United States Supreme Court has once again taken up a case to consider the scope of protection for wetlands under the CWA in Sackett v. EPA.[xi]
Sackett is no stranger to the Court and will be before the Court again later this year.[xii] In Sackett, the plaintiffs want the Court to narrow the scope of what constitutes WOTUS under the CWA by fully adopting Justice Scalia’s test from the plurality opinion in Rapanos v. United States.[xiii] This test requires wetlands to have a “continuous surface connection” to another navigable water in order to obtain protection under the CWA.[xiv] The plaintiffs are seeking to narrow the scope of WOTUS because lower courts seemingly prefer to apply Justice Kennedy’s test from his concurring opinion in Rapanos.[xv] This test would consider whether a wetland has a “significant nexus” to another navigable water in order to determine whether the wetland deserves protection under the CWA which would narrow the number of areas considered to be wetlands.[xvi]
In the aftermath of Rapanos, the EPA amended their regulations in 2015 to define WOTUS.[xvii] However, the lower courts never fully accepted the EPA’s 2015 rule, and the EPA’s 2019 rule ultimately repealed it.[xviii] Additionally, the EPA is currently conducting notice and comment rulemaking to redefine WOTUS again, which could result in endless cycle of new rules under new presidential administrations as seen in 2015 and 2019.[xix] Given the fluctuating definitions of WOTUS, the plaintiffs in Sackett argue that Justice Scalia’s plurality opinion in Rapanos is the best interpretation of the CWA, and fully adopting it would resolve many of the uncertainties surrounding WOTUS going forward.[xx] Ultimately, the plaintiffs want the Court to narrow the scope of WOTUS, which will remove EPA’s jurisdiction over the wetlands on their property, allowing them to build without a CWA permit.[xxi]
On the other hand, the EPA believes that the plaintiffs in Sackett have overstated the level of confusion surrounding WOTUS, especially considering that circuit courts have confirmed protection for wetlands when Justice Kennedy’s “significant nexus” test is satisfied.[xxii] Even though the EPA argued that the lower courts applied the correct test, the Supreme Court decided to hear the case.[xxiii] This evidence suggests that the Court is heading for a decision to limit the scope of WOTUS, therefore limiting protections for wetlands under the CWA.[xxiv]
While many agree that there needs to be more certainty surrounding the scope of WOTUS, it is discouraging to see the Supreme Court undercutting the EPA’s current rulemaking efforts, which the EPA has the discretion to do under the CWA to define WOTUS.[xxv] Considering the trajectory of the current Supreme Court, it is most likely that the Court will fully adopt the Rapanos plurality opinion to be the outcome of Sackett, which will immediately reduce protections for wetlands going forward.[xxvi] This outcome will be unfortunate considering the vital importance of wetlands in supporting a healthy environment and naturally combatting climate change.[xxvii] Therefore, more individual action will almost certainly be necessary to protect wetlands in the very near future.[xxviii]
[i] What is a Wetland?, Envtl. Protection Agency, https://www.epa.gov/wetlands/what-wetland [https://perma.cc/W38L-GPSS ] (last visited Feb. 17, 2022).
[ii] What is a Wetland?, Nat’l Ocean Serv., https://oceanservice.noaa.gov/facts/wetland.html [https://perma.cc/LER7-YKNP] (last visited Feb. 17, 2022); Why are Wetlands Important?, Nat’l Park Serv., https://www.nps.gov/subjects/wetlands/why.htm (last visited Feb. 17, 2022) [https://perma.cc/V5LA-VZR4].
[iii] Why are Wetlands Important?, supra note ii.
[iv] World Wetlands Day, United Nations, https://www.un.org/en/observances/world-wetlands-day (last visited Feb. 17, 2022) [https://perma.cc/S7VU-3BSY ].
[v] Id.
[vi] Id.
[vii] Hannah Northey, U.S. Eyes Wetland Restoration as Hedge Against Climate Change, E&E News (Sept. 24, 2021, 12:19 PM), https://www.eenews.net/articles/u-s-eyes-wetland-restoration-as-hedge-against-climate-change/ [https://perma.cc/T8Z4-BLND].
[viii] World Wetlands Day, supra note iv.
[ix] About Waters of the United States, Envtl. Protection Agency, https://www.epa.gov/wotus/about-waters-united-states (last visited Feb. 27, 2022) [https://perma.cc/638Z-C8A8].
[x] Id.
[xi] Treading Water: WOTUS Once Again Before the Supreme Court, Nat’l Agric. L. Ctr. (Feb. 3, 2022), https://nationalaglawcenter.org/treading-water-wotus-once-again-before-supreme-court/ [https://perma.cc/2V7F-DSEY].
[xii] Id.
[xiii] Id.; Rapanos v. United States, 547 U.S. 715, 757 (2006).
[xiv] Id.
[xv] Treading Water, supra note xi; Rapanos, 547 U.S. at 759.
[xvi] Id.; Jonathan Thompson, The Supreme Court is Set to Weigh in on the Clean Water Act’s Reach, High Country News (Feb. 8, 2022), https://www.hcn.org/articles/water-the-supreme-court-is-set-to-weigh-in-on-the-clean-water-acts-reach [https://perma.cc/PBA8-DZVG].
[xvii] About Waters of the United States, supra note ix.
[xviii] Id.
[xix] Id.;Treading Water, supra note xi.
[xx] Treading Water, supra note xi.
[xxi] Treading Water, supra note ix; Jacqui Fatka, SCOTUS to Hear WOTUS Case, Farm Progress (Jan. 24, 2022), https://www.farmprogress.com/farm-policy/scotus-hear-wotus-case [https://perma.cc/R6HN-KWZH].
[xxii] Treading Water, supra note xi.
[xxiii] Supreme Court Takes Up Clean Water Act Case, May Settle ‘WOTUS’ Definition, JDSUPRA (Jan. 27, 2022), https://www.jdsupra.com/legalnews/supreme-court-takes-up-clean-water-act-5369026/ [https://perma.cc/4T3X-N8UC].
[xxiv] Id.
[xxv] About Waters of the United States, supra note ix.; Id.
[xxvi] Supreme Court Takes Up Clean Water Act Case, May Settle ‘WOTUS’ Definition, supra note xxiii; Rachel Frazin, Supreme Court to Review Which Wetlands get Federal Water Protections, The Hill (Jan. 24, 2022, 10:34 AM) https://thehill.com/policy/energy-environment/591023-supreme-court-to-review-which-wetlands-get-federal-water [https://perma.cc/8W67-7XA3]
[xxvii] Supreme Court Takes Up Clean Water Act Case, May Settle ‘WOTUS’ Definition, supra note xxiii.; Why are Wetlands Important?, supra note ii.
[xxviii] World Wetlands Day, supra note iv.