Navigating Rough Waters After Sackett v. EPA

The Clean Water Act is the primary federal law regulating impacts to water resources and water quality in the United States. Congress asserted the focus of the Act in the first section: to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Federal jurisdiction to implement this focus for many of the Act’s water protection programs turns on whether a waterbody is classified as a “Water of the United States” (WOTUS). The definition of WOTUS has been contested since the ink dried on the Act, with proponents of greater water protections arguing for more expansive boundaries of federal jurisdiction. Most recently, the Supreme Court re-interpreted WOTUS in Sackett v. Environmental Protection Agency (2023), in which the Court held that wetlands 300 feet from Priest Lake would no longer be considered adjacent wetlands protected as WOTUS. Upending forty-five years of agency and judicial interpretation, the Court narrowed the definition of WOTUS to only those wetlands that have a continuous surface connection to a traditionally navigable body of water, such as a river or lake. This places many wetlands and ephemeral and intermittent streams outside of federal jurisdiction, and thus, the protections of the CWA. Yet, wetlands and nonperennial streams are vital to the chemical, physical, and biological integrity of the Nation’s waters. Wetlands filter pollutants from water, retain and absorb flood waters, and provide habitats for wildlife. Ephemeral and intermittent streams are ubiquitous and important pathways that drain water and pollutants into traditional navigable waters. Removing federal protections means these areas are vulnerable to ruin by human alterations, and it increases flood risks to downstream communities. Decreasing federal jurisdiction over the majority of wetlands and nonperennial streams across the U.S. places a greater emphasis on the role of states and tribes in water protection. Lacking a consistent federal approach results in a patchwork of protections for waters that are now considered nonfederal, even when those waters impact large regional shared waters, such as the Great Lakes, the Mississippi River, the Colorado River, and Rio Grande, to name a few. This Article starts with a grounding in the scientific literature to explore the importance and vital functions of the waters that have lost federal jurisdiction. Using that as a springboard, we explain the most important legal decisions defining WOTUS to place Sackett v. EPA in context. We then discuss the divergent responses to the loss of federal jurisdiction by surveying responses at federal, tribal, and state levels of government. We show that many tribes opposed reducing federal protections leading up to Sackett, and after the decision, at the federal and state level, the battle continues over removing versus restoring regulatory protections. We observe that even in states where reducing regulatory control is favored, agreements have been forged around non-regulatory programs that fund wetland protections. We conclude that tribes and states have the power to shape protections for these vital waters regardless of federal jurisdiction, but with no federal regulatory backstop, the integrity of the Nation’s waters is threatened by this piecemeal approach.