The recent Supreme Court ruling in the case of Sackett v. Environmental Protection Agency has caused significant concern among environmentalists. The case involved a couple wanting to build a house across a road from a lake in Idaho, in an area that the EPA deemed as wetland. In the ruling, the court held that the Clean Water Act extends to only those wetlands that are indistinguishable from waters of the United States. This decision is expected to have significant and far-reaching impacts on wetland protection across the country and beyond.
One of the most obvious effects of this ruling is that it will lead to the loss of millions of acres of wetlands. As of 2009, the continental US contained approximately 110 million acres of wetlands, an area about the size of California. However, wetlands have been disappearing for some time now, and the Supreme Court's ruling is set to accelerate their loss. Many landowners seeking to build in wetland areas, including one of Jami Balint's clients, are already exploring their options in the wake of the decision.
Another effect of the ruling is that it will shift more wetland protection responsibilities to the states. However, this move could be risky, as not all states have strong environmental protection measures in place. For instance, the Southern Environmental Law Center is currently battling plans for an 8,000-acre titanium strip mine adjacent to the Okefenokee Swamp, a rare remaining peat-filled wetland on the Georgia-Florida border. Scientists have shown a clear hydrological connection between the swamp and the wetlands at issue, but the SCOTUS ruling threatens to make federal law inapplicable, leaving very few options for stopping the mine. Many states are also moving backward in their wetland protection measures.
The court's ruling also raises questions about whether levees, dunes, and other barriers will still be protected. Justice Brett Kavanaugh, in a concurring opinion with the three liberal justices, expressed worries about the new standard limiting the coverage of wetlands to those with a 'continuous surface connection.' He warned of the potential harm to wetlands separated from major waterways by a barrier like a dike or beach dune, such as those that protect the Chesapeake Bay. Dietrich Hoefner, a partner at Lewis Roca who focuses on regulatory matters, says that the court's new 'surface connection standard' is absolute and inflexible, and that the Biden administration's recent rules regarding the Clean Water Act have explicitly rejected the continuous waters standard. This has created significant uncertainty regarding the protection of wetlands separated by barriers like levees.
Even with the ruling, however, litigation is not over. Many of the questions raised by the ruling, such as the protection of levees, will need to be litigated. Environmentalists are concerned about the aggressive, bright-line rule created by the court, and believe that it will inevitably lead to many absurd outcomes, which will need to be tested in court. Developers and property owners, in turn, will need to wait for guidance from the agencies before rushing to the counter for permits. Ultimately, it will take years before the full consequences of the Supreme Court's decision are felt.