Okefen-Not-Okay: Georgia’s Wetlands Are in Danger

Wetlands are considered the kidneys of the earth’s ecosystem. Their complex hydrologic systems work to clean pollutants from surface and ground water—water that often ends up as drinking water. Since the 1940s, Congress has recognized the importance of clean water in our everyday lives, and it has passed several water protection laws including the Clean Water Act. The Clean Water Act requires a permit for any activity that discharges dredge or fill material into “waters of the United States.” However, environmentalists and private landowners were at odds on how broad the Environmental Protection Agency and Army Corps of Engineers could interpret waters of the United States, and the term’s jurisdiction had been expanded or weakened depending on the political body in charge. In 2006, the Supreme Court had an opportunity to definitively define waters of the United States in Rapanos v. United States, but instead there was only a plurality decision. Justice Kennedy’s opinion held that wetlands which significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable” were protected under the Clean Water Act. In 2023, the scope of the waters of the United States was again challenged in Sackett v. Environmental Protection Agency. This time the Supreme Court reached a majority decision that significantly restricted the scope of the Clean Water Act’s protections for wetlands. Instead of only needing to have a significant impact on traditional navigable waters to be protected, the wetland now needs a continuous surface connection to a traditional navigable water. For states like Georgia that relied on the Clean Water Act’s permitting system to regulate dredging activities, wetlands are now in serious peril unless wetland protections are strengthened. This Note explores protection options for Georgia’s wetlands at both the state and federal levels. First, Georgia could consider adopting legislation to protect wetlands throughout the entire state. Second, Georgia could at least consider adopting legislation to protect wetlands surrounding the celebrated Okefenokee Swamp. Finally, the federal government could use its constitutional authority under the Property Clause to protect wetlands surrounding the Okefenokee and other federally protected waterways.