For the last 45 years the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach.
The Sackett decision and its ramifications
None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.
The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly. Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However,, and today’s closely divided Congress is unlikely to fare any better.
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