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On May 25, 2023, the US Supreme Court decided Sackett v. EPA (Sackett II). This is an important administrative and environmental law case. The case turned on the meaning of a single word — adjacent — but is really a battle in the fight to weaken the federal government’s regulatory authority in favor of state regulation.
The Sacketts wanted to build a house on a lot that was part of a wetland. They wanted to add fill dirt to the lot to build up an elevated, dry location for their house. They did not want to obtain a federal permit to fill a wetland. They are represented by a property rights litigation foundation and this is their second trip to the Supreme Court. In Sackett I (discussed in our materials on standing), they established the right to contest the EPA’s designation of their land as a wetland without incurring hefty fines while doing so. In this case, they challenged the broad authority to regulate wetlands granted to the EPA in the Clean Water Act.
Wetlands are areas where the ground stays wet enough for long enough that the plants that grow on the ground are the type that favor wet ground and the plants that require dry ground die out. Some wetlands, like the Atchafalaya Swamp, stay wet all the time. Some are only wet part of the year, such as low-lying areas on the midwestern prairies. In arid parts of the West, some may go years without being wet.
Historically, settlers hate wetlands. Mosquitoes breed there, allowing the spread of yellow fever and malaria. They cannot be farmed and you cannot build on them. States and the federal government encouraged and funded filling in wetlands to create what was seen as productive farmland. Huge areas of wetlands were drained and filled.
Hunters’ groups, such as Ducks Unlimited, recognized the critical importance of protecting wetlands to provide habitat for wildfowl. For example, the prairie wetlands and Louisiana swamps were critical to supporting the yearly north-south migration of migratory wildfowl. They worked with early conservation groups such as the Audubon Society to get federal protection for wetlands. Federal protection was necessary because state politicians were more interested in development than in the protection of wetlands.
President Theodore Roosevelt was the first president to recognize the importance of protecting wildlife, including their wetland habits. Congress subsequently passed laws protecting migratory wildfowl and their habitats. This cumulated with a provision in the Clean Water Act of 1972 giving the EPA authority to protect wetlands adjacent to waters of the United States. EPA, through the Army Corps of Engineers, set a policy of no net loss of wetlands. To implement this policy, the EPA limited development on existing wetlands. In most cases, this effectively prevented the draining and filling of wetlands unless new wetlands were created to offset the lost wetlands. (Ironically, there was an exception for small lots which could have allowed the Sacketts to build their home, if they had applied for a permit.)
The program has been very controversial. Wetlands scientists question whether the wetlands created to mitigate the loss of natural wetlands are effective if they even get built. Landowners often lose most of the value of their property if it is determined to be a wetland. Property rights groups have fought federal wetlands protections for years, knowing that most states will be much friendlier to development. Congress has not changed the law because wetlands protection is broadly popular with the public.
For 50 years, the EPA has assumed that the word “adjacent” in the Clean Water Act meant that it could protect wetlands that were close to, but not on the banks of rivers and lakes, as long as there was some hydrologic connection. It also assumed that “waters of the United States” was construed broadly including all rivers and lakes, not just those that you could float a boat on and conduct interstate commerce.
The Sackett II court held that “adjacent” had a very narrow meaning, effectively limiting the authority to protect wetlands to those directly connected to waters of the United States. The court also found that “waters of the United States” is more narrow than any rivers and lakes, perhaps limited only to actually navigable waters. For example, many western rivers can dry up completely during parts of the year. Whether these are included in “waters of the United States” is not clear and will have to be resolved by future litigation.
While the Sackett II decision is unanimous, the moderate judges only joined in the general finding that the EPA had overreached. They did not join in the dramatic narrowing of the EPA’s authority. Sackett II will eliminate most inland wetlands regulation by the Federal government. It shows the power of the court to reinterpret a statute to remove agency powers that Congress believed it was giving the agency at the time the law was drafted. It will profoundly limit the protection of wetlands in the United States and end the policy of no net loss of wetlands across the United States. State governments will now have to step in or see their state wetlands lost.