On May 26, 2023, the Supreme Court handed down another momentous decision weakening federal environmental protections - Sackett v. EPA. Not even a year ago, the Court ravaged the Environmental Protection Agency's (EPA) ability to regulate carbon dioxide emissions in West Virginia v. EPA. Yet again, the Court seems out to limit the power of federal agencies to protect our environment; only this time, the Clean Water Act (CWA) is in its crosshairs.
Before the Court in Sackett v. EPA, the question was whether CWA protections apply to wetlands. Under the CWA, all "waters of the United States" are federally protected. Since the late 1980s, this was interpreted to include any "wetlands adjacent to waters" already protected. To determine when a wetland was "adjacent," the enforcing agencies, the EPA and the Army Corps of Engineers (Army Corps) employed science-driven approaches evaluating biological and ecological connectedness. The EPA would use these factors to determine the scope of their jurisdiction over wetlands under the CWA. However, in Sackett, the Court has seen fit to redefine "adjacent" for the scientific experts - limiting the scope of CWA jurisdiction. "Adjacent," the majority ruled, means "to have a continuous surface connection with." The result is that the CWA will now only apply to those "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right." This new rule excludes wetlands separated from a covered water only by an artificial barrier, natural river berm, beach dune, or anything else.