How Will the States Step Up? Wetlands and Water Quantity Management after Sackett

The U.S. Supreme Court’s (the Court’s) 2023 decision in Sackett v. Environmental Protection Agency brought clarity––for good or for ill––to the definition of “waters of the United States” (WOTUS) in the Clean Water Act (Act). See “Does Sackett bring clarity to ‘waters of the United States’?”. This article considers the consequences of Sackett from an on-the-ground perspective. Specifically, when facing the increasing need for climate resiliency, states inclined to proactively adjust to the changed legal landscape must bear in mind that wetlands are crucial not just for their vital contribution to water quality, but also to water quantity management.

As background, the U.S. Environmental Protection Agency (EPA), as supported in Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021) (subsequently unanimously overturned by the Court), concluded that it had jurisdiction over Chantell and Michael Sackett’s Idaho property, where the couple “began placing sand and gravel fill” on their “soggy residential lot” because they “planned to build a home.” Id. at 1078. The 9th Circuit summarized the relevant geography and hydrology as follows:

To the north [of the wetlands on the Sacketts’ property], across [a r]oad, lies [a f]en, a large wetlands complex that drains into an unnamed tributary. That tributary feeds Kalispell Creek, which, in turn, flows southwest of the Sacketts’ property and then empties into Priest Lake. To the south, across another road, is a row of homes fronting [the] Lake. The Sacketts’ property is 300 feet from the lake. Id. at 1081.

The 9th Circuit in its decision applied “Justice Kennedy’s ‘significant nexus’” test from Rapanos v. United States, 547 U.S. 715 (2006), “to evaluate whether EPA has jurisdiction to regulate the Sacketts’ property” (8 F.4th at 1091), and readily found that EPA did. The 9th Circuit accepted the agency’s reasoning, as the Sacketts described in their Brief to the Court, “because (i) the property contains, within the meaning of the agencies’ [(i.e., both EPA and the U.S. Army Corps of Engineers (Corps)] regulations, ‘wetlands’ that are ‘adjacent’ to a ‘tributary’ of Priest Lake (namely, the roadside ditch), and (ii) the site’s purported two-thirds-of-an-acre wetland, in combination with the few dozen acres of wetlands on the other side of [a r]oad, bears a significant nexus to [the] Lake.” Pet. Br. at 22. The 9th Circuit in its decision quoted Justice Kennedy’s opinion in Rapanos, writing, “The [EPA]’s conclusion that the Sacketts’ wetlands, combined with the similarly situated Fen, ‘significantly affect the chemical, physical, and biological integrity of’ [and therefore have ‘a significant nexus to’] Priest Lake [, ‘a traditional navigable water’ and along with its tributary Kalispell Creek a water of the United States] was a reasonable one which we will not second-guess.” 8 F.4th at 1092–93.

There is little doubt that, before their amendment following Sackett, EPA’s and the Corps’ January 2023 regulations defining the scope of waters protected under the Act would have still applied to the Sacketts’ property. As these agencies pointedly wrote in the preamble to the rule, “If a wetland is separated from a jurisdictional water by man-made dikes or barriers, natural river berms, beach dunes, and the like, then the wetlands are adjacent under this rule . . . . For example, a wetland that is separated from a jurisdictional tributary simply by a 40-foot road meets the longstanding definition of adjacent.” 88 F.R. 3004, 3094 (Jan. 18, 2023) (emphasis added). Also, as EPA argued in its Brief to the Court, “Today, [the Sackett’s] property remains connected to the fen . . . by ‘shallow subsurface flow.’” App. Br. at 9.

The Court in Sackett was unanimous on only two major points: the EPA did not have jurisdiction under the Act over the Sacketts’ property, soggy though it may have been, and it was time to retire Rapanos’ significant nexus test. The latter holding had enormous implications, undoing decades of EPA and Corps rulemaking and guidance. President Biden’s Statement in his response to the Court’s ruling focused on the importance of water quality: “Today’s decision . . . . defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.” Even Justice Alito’s majority referenced how, because of the Act, “many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country.” Sackett, 143 S. Ct. 1322, 1329 (2023).

However, the Sackett ruling has implications far beyond protecting water quality. With the loss of the significant nexus framework, EPA and the Corps issued the September 2023 regulations, deleting provisions that relied on that interpretation, including whether wetlands have a “material influence on the chemical, physical, or biological integrity of” WOTUS through functions such as “[c]ontribution of flow” and “retention and attenuation of floodwaters and runoff” (i.e., physical integrity functions, labeled in this article as “water quantity management functions”). EPA and the Corps in the preamble to their January 2023 regulations, noted that “[c]limate change can have a variety of impacts on water resources in particular” such as “more extreme cycles of flood and drought” with effects on “streamflow characteristics, [thereby] . . . . negatively affecting water supplies and water quality.” 88 F.R. at 3017. Wetlands can, on the other hand, contribute to “climate resiliency” by, for example, “stor[ing] large volumes of floodwaters, thereby reducing flood peaks and protecting downstream watersheds” (id.), as well as, “in source water protection areas . . . help protect water quality, recharge aquifers, and maintain surface water flow during dry periods.” Id. at 3032.

While the Sackett majority made no reference to the water quantity management functions of wetlands, two of the concurring opinions did. Justice Kagan, joined in her concurrence by Justices Sotomayor and Jackson, noted that “wetlands play a crucial role in flood control (if anything, more needed now than when the statute was enacted).” 143 S. Ct. at 1360. Justice Kavanaugh, joined in his concurrence by Justices Sotomayor, Kagan, and Jackson, wrote, “The scientific evidence overwhelmingly demonstrates that wetlands separated from” waters covered by the Act by “artificial barriers such as dikes and levees” “for example, still play an important role in protecting neighboring and downstream waters, including by . . . storing water, and providing flood control.” Id. at 1368.

The states’ positions regarding Sackett reflected, as usual, a house deeply divided. An Amicus Brief for Petitioners filed with the Court by West Virginia and 25 other states argued, “If the [Act] applies to any damp piece of land with an indeterminate ‘nexus’ to interstate waters, then the Constitution’s and the statute’s balance among the sovereigns will come askew.” W. Va. et al., Am. Br. at 1–2. That brief also argued, “The States understand better than federal regulators the unique (and ever-changing) hydrological . . . challenges facing their local environments.” Id. at 9. Alaska, filing a separate amicus brief for petitioners, argued that it is home to “63 percent of the Nation’s wetlands” and so “disproportionately burdened by federal incursion into public infrastructure projects and private development”; and that “[u]nchecked agency overreach under the significant nexus test [unnecessarily] impedes Alaska’s ability to meet its social and economic needs” when “[s]tate-level efforts, like Alaska’s, are tailored to local conditions and leverage local insight.” Alaska Am. Br. at 2–3, 8, 26.

An amicus brief for respondent filed by New York, 16 other states, and the District of Columbia argued, on the other hand, “Coverage of wetlands that significantly affect navigable waters is essential to the [Act] because those wetlands can have profound impacts on the quality, quantity, and biological integrity of those waters.” N.Y. et al., Am. Br. at 11 (emphasis added). Colorado, filing a separate amicus brief for respondent, argued that while “a large percentage [of its] wetlands are not connected to perennial streams by surface flow[,]” they can nevertheless be of significant importance to “waters at lower elevation that are ultimately used by the public for domestic water supply, recreation, and agricultural use.” Colo. Am. Br. at 1, 4–5.

States continue to recognize, independently of federal law, the vital contribution of wetlands to water quantity management. For example, Massachusetts’ Wetlands Protection Act identifies eight equally “significant” interests, including the water quantity management interests of “public or private water supply,” “flood control,” and “storm damage prevention.” Other examples include, but are not limited to, Florida’s Statutes: Water Resources (variously referencing the importance of wetlands to water supply and stormwater management), Maryland’s Nontidal Wetlands Regulations (referencing “[a]ttenuation of flood waters and storm waters”), Minnesota’s Wetland Conservation Act and New Jersey’s Freshwater Wetlands Protection Act (with both Acts explicitly broad in scope like that of Massachusetts), and Washington’s Administrative Code: Wetlands (“Wetland functions vary widely” and can include flood reduction). Many of the states that recognize such interests, perhaps not coincidentally, also variously empower local government bodies to further enhance wetland protection. For example, the City of Boston, using its “Home Rule Authority” under Massachusetts law and consistent with its Climate Ready Boston initiative, can with its own Wetlands Regulations establish “Coastal Flood” and “Inland Flood Resilience Zone[s],” even though such go beyond the scope of Massachusetts’ Wetlands Protection Regulations. In short, states and municipalities so inclined have ameliorative statutory and regulatory models to choose from for enhancing wetlands protection in the wake of Sackett.