The Impact of the Supreme Court's Roll Back of Wetlands Protections

Photo credit: David Imburgia (City of Seaford, VA)

Snapshot: In May of 2023, the United States Supreme Court in its decision in the case Sackett v. EPA narrowed (yet again) the definition of Waters of the United States (WOTUS), and as a result, weakened federal wetlands protections nationwide. In Virginia, our tidal and non-tidal wetlands protections are stronger than the federal government’s, but only so long as we uphold our exemplary laws in the General Assembly and resist any and all “federal consistency” calls to roll back our protections. The stakes are high. If the Commonwealth decides to forgo decades of bipartisan wetlands conservation support and adopt “Sackett Rule,” 35% of Virginia’s wetlands will lose protections. 

Background: Sackett v. EPA is a case about property owners building a house on land in Idaho. The basic issue was whether the land was wetlands or not, as defined by the Waters of the US (WOTUS) rule. If the land was determined “WOTUS” then it would be protected by federal law under the Clean Water Act. Prior to the Sackett case, the test to determine WOTUS was decided by the Rapanos v. US (2006) Supreme Court decision: waters that are relatively permanent or have a significant nexus to navigable waters. In Sackett, the Court determined, unanimously, that the land was not WOTUS, but the Justices did not agree on the test by which the Court came to this decision. In the majority opinion, Alito (with Roberts, Thomas, Gorsuch, and Coney Barrett joining) narrowed the Rapanos WOTUS test to include only those waters that have a continuous surface water connection. Essentially, this test means that if you can’t see a surface water connection to federally protected water bodies, then federal wetlands protections don’t exist.

Justice Kavanaugh authored a minority concurring opinion, as did Kagan (with Sotomayor and Brown Jackson joining), in which they agreed with the judgment, but disagreed with narrowing the WOTUS test. Kavanaugh’s opinion warned the new test would create “regulatory uncertainty” and noted it would remove protections from wetlands separated by man-made dikes, barriers, berms, beach dunes, and the like. Kavanaugh’s opinion goes further, stating “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.” Justice Kagan’s opinion cautioned against the Court’s role as “the national decision maker on environmental policy.” 

So what does this all mean?

The Impacts: As most elementary students know, wetlands are not always connected to water above ground. Wetlands are connected to, fed by, and dependent upon navigable waters by groundwater links that we cannot see. Defining wetlands as only those we can see as connected through open water is a grossly simplified approach and does not reflect how science or nature works. Just because you can’t see it, doesn’t mean it doesn’t exist. Justice Alito’s opinion seems to forget this simple fact and now we’re all left to make sense of the repercussions. As a result of the Sackett decision and subsequent EPA rule, more than half of the wetlands in the US will lose federal protection through the Clean Water Act. If you live in a state where the federal WOTUS protections are adopted and enforced, then your state will be subject to “Sackett Rule.” If your state has adopted its own protections that go beyond the WOTUS standard, then your protections are unchanged by Sackett Rule, so long as the state maintains those protections. Here’s the problem - states are already encountering calls for “federal consistency” with the new WOTUS rule. North Carolina fell victim to federal consistency efforts and now their state protections that were stronger than WOTUS have been rolled back. We cannot let this happen in Virginia.

See a breakdown of state protections below:

Virginia Impacts: In Virginia, we enforce laws that protect both tidal and nontidal wetlands, going well beyond the federal Clean Water Act protections. After the Sackett decision, Virginia’s Director of the Department of Environmental Quality (DEQ), Michael Rolband, released a memo strongly affirming Virginia’s protections. If we roll back our existing laws, at least 35% of Virginia’s wetlands would lose protection. This would be a devastating blow to our decades-long bipartisan efforts to preserve the Commonwealth’s natural resources. The environmental, economic, and social impacts would be disastrous, as wetlands are the most productive and biodiverse habitats in the world, offering countless benefits to Virginia. It’s important to note that the 35% potential loss of protection only applies to existing wetlands. We also need to think and plan for the future and ensure that our future migrating wetlands are also protected. In Virginia, we cannot roll back our wetlands protections - we’ve worked too hard for too long to go backwards.

Potential Solutions: For states that have wetlands laws that are more protective than the federal government (this includes VA), the solution is keep these laws intact and in force. For those states that have to rely on federal wetlands protections, there is a solution in a bill recently introduced in Congress. The Clean Water Act of 2023 “seeks to reverse the dangerous Sackett decision by reinstating the historic and bipartisan, federal-state partnership that has protected our rivers, streams, and wetlands for over 50 years.” The bill replaces the term “navigable waters” with a new statutory tem “protected water resources,” which includes all types of wetlands and water bodies irrespective of their frequency of flow or surface water connection. This legislation resulted from a recent report from the Congressional Subcommittee on Water Resources and Environment. We’ll see how it fares in Congress. 

What We’re Doing: Wetlands Watch is joining many environmental nonprofits across the country and in Virginia to organize around this issue. We are tracking VA DEQ’s response carefully. Part of this response includes DEQ’s exploration of cutting the joint federal-state wetlands permitting program by assuming full control of wetlands permitting in Virginia. The state explored this in the past, but concerns about high costs and capacity remain today. We’ll explore this more in a future blog post. We’re also preparing to defend any legislative attempts to roll back our wetlands laws in the name of federal consistency with the Sackett Rule. We are meeting with legislators and community leaders and talking about the importance of Virginia’s wetlands laws in hopes that we can quell interest in adopting Sackett Rule in VA.

What You Can Do: Talk to your friends and neighbors about this recent change in federal wetlands protections. If you are concerned, like we are, please talk to your legislators about how important it is to maintain Virginia’s tidal and nontidal wetlands laws. Also, don’t forget to vote!