Supreme Court Drains Wetland Protections from the Clean Water Act

By Delores Chan

In May, the U.S. Supreme Court gutted protections for wetlands nationwide. The Sackett v. EPA decision establishes a new definition for wetlands that effectively eliminates federal protections for seasonal wetlands, like biodiverse vernal pools, many of which support rare and endangered plants. Fortunately, California has an important backstop to reduce the harm of the Court’s decision, but negative impacts are still likely. Here’s what you should know: 

A watershed moment for the Clean Water Act 

The Sacketts bought property in Idaho and decided to dredge and fill part of their land for development. The EPA then intervened on the grounds that the Sacketts could not fill this wetland because they had not acquired the permit to do so under the Clean Water Act (CWA). The CWA protects what are known as the Waters of the United States (WOTUS), which are any navigable waters within the United States, such as: lakes, coastal zones, ponds, and rivers.  Congress recognized the importance of wetlands when the modern version of the CWA was signed into law in 1972, noting that wetland ecosystems foster biodiversity and clean and filter the water that flows through them. In more recent times, and in light of the climate change crisis, we have come to understand the role that wetlands play in the sequestration of carbon, as well. 

Over the past 50 plus years, the implementation of the CWA has secured protection for wetlands, even those that are ephemeral in nature. But, countless amendments and lawsuits have added to, clarified, redefined, or removed certain aspects of the CWA. A key point of contention both before and after the signing of the CWA is how regulatory bodies deal with seasonal wetlands, such as vernal pools, that are not always inundated, or easily distinguishable as navigable bodies of water. 

The Sacketts argued that the land they were filling did not fall under the existing “wetland” definition determined by another Supreme Court case known as Rapanos v. EPA. The Rapanos decision created a “significant-nexus test” to determine whether a piece of land was a wetland or not. Through Rapanos’s significant-nexus test, a piece of land is considered a wetland if it demonstrates a significant nexus to a traditional WOTUS. This means that a wetland does not have to be directly next to a lake or river; being adjacent to a WOTUS would offer protection under the CWA.  

May’s Sackett decision unravels Rapanos’s precedent by creating a new test for CWA protection that requires a wetland to have a permanent surface water connection to a navigable stream, river, lake, or other body of water. By removing the WOTUS designation of seasonal wetlands, vernal pools, ephemeral drainages, and wetlands not directly connected to other permanent bodies of water, this decision vastly reduces the types of waters that will be protected by the CWA across the United States.  

The decision has serious implications for places like California and the southwestern United States, where many bodies of water dry up for months and sometimes even years, only to return with sufficient precipitation. These are the very places that support some of our rarest plants. 

Potential consequences for rare plants

A chief concern is how rare plants listed under the Federal Endangered Species Act (ESA) that occur in wetlands will fare in light of the Sackett ruling. Previously, the presence of a listed plant on private or state lands that are not under federal jurisdiction would trigger consultation with the U.S. Fish and Wildlife Service (USFWS) even if the project was not part of a federal action. This process of consultation resulted in meaningful analysis of impacts, mitigation measures, and added protections for some of our most imperiled plant species, including those endemic to vernal pools. Given the new circumscription of what is considered a wetland in Sackett, rare plants found in aquatic environments such as vernal pools and many other non-tidally influenced wetlands will no longer trigger USFWS consultation, creating a concern that there will no longer be a procedure for a thorough review of impacts to ESA-listed species on private land.  The decision could result in potential losses of federally listed rare plant populations, which would be detrimental to the biodiversity and health of ecosystems around our state. 

California’s backstop needs support 

Federal legislation is the standard that all states must follow, but states can create legislation that goes above and beyond federal regulations. When states create and implement legislation that exceeds the federal standards, the state is able to avoid federal preemption, with state laws taking precedence. In California, the Porter-Cologne Act of 1969 created the State Water Resources Control Board (SWRCB), in addition to defining protections for other surface, ground, and saline waters, including wetlands. In fact, aspects of Porter-Cologne influenced the creation of the CWA. 

With the Sackett ruling weakening federal protections, California’s laws will continue to cover wetlands in our state. On a positive note, the Porter-Cologne Act and SWRCB define wetlands to include those that are ephemeral, and include standards and protections greater than what is now mandated federally. So, even if an area is not permanently covered with water or lacks a surface connection to a navigable body of water, it may legally receive protection in California. However, the challenge will be how this rolls out in practice. The Army Corps of Engineers, the federal body charged with enforcing portions of the CWA, has been an important partner in California project review and implementation. The SWRCB has relied on the Army Corps’ permitting process and lacks its own procedural framework for permitting, or for enforcement of violations to the Porter-Cologne Act. While the legal authority for the SWRCB exists, the removal of federal staff and procedure from the process has created a vacuum that will likely require rulemaking, staffing, training, and time. As a result, a greater burden of regulation for impacts to wetlands is now shifted to California agencies already at capacity. 

What can be done 

With Sackett and already limited resources at the SWRCB and other state agencies, we are concerned that review processes for projects that imperil wetlands and associated rare plants will be skirted or incomprehensive. As we navigate these uncharted waters, we must continue to advocate for the broad application of state law and the ample staffing necessary for its enforcement. We urge all Californians to keep a close eye on wetlands in your communities and nearby areas to protect the health and safety of these ecosystems. 

Any wetland under consideration for development or alteration must have a thorough environmental review that both details and mitigates for potential impacts. These same projects also must obtain all permits required by law, including those associated with impacts to wetlands, streams and other bodies of water. California’s most powerful protections rely on engaged, well-informed citizens. Last, all of this highlights the potential need for new state legislation to codify protections for imperiled wetlands by closing the gap between current state law and the void created by the Supreme Court’s Sackett ruling.  

Delores Chan is the CNPS Natalie Hopkins Conservation Intern.
Special thanks to CNPS members Peter Baye and Vince Scheidt for their contributions to this post.