Supreme Court Ends Protection for Most Wetlands In The U.S.—But Not In California
The Supreme Court ends protection for most wetlands in the United States...
In a sweeping decision, the Supreme Court last week eliminated federal protection for more than half the wetlands in the United States. (Sackett v. EPA, 566 U.S. 120 (2023)).
Under the Clean Water Act, EPA and the Army Corps of Engineers have for decades been charged with regulating and permitting discharges into "waters of the United States." Since 1986 (with a brief interruption from 2020 to 2021), those waters have been broadly defined to include traditional navigable waters; tributaries to those waters; and wetlands adjacent to those waters and tributaries. The term "adjacent" did not mean directly connected; rather, it meant nearby or "in reasonable proximity."
This definition of "waters of the United States" gave EPA and the Army Corps jurisdiction over virtually all wetlands in the United States.
In 2006, the Supreme Court narrowed the scope of federal jurisdiction slightly in the Rapanos decision. Justice Kennedy—in a concurrence that became the de facto holding of the Court—imposed the "significant nexus" test. Under this test, EPA and the Army Corps could continue regulating adjacent wetlands, but only if the wetlands were found to "significantly affect the chemical, physical, or biological integrity" of traditional navigable waters.
In Sackett, the Court now rejects the protection of adjacent wetlands altogether. Only wetlands directly connected to traditional navigable waters are subject to federal jurisdiction. The wetlands must have a "continuous surface connection" to traditional navigable waters or their tributaries, and be virtually "indistinguishable" from them. With the stroke of a pen, the Court eliminated federal protection of more than 50 million acres of formerly protected wetlands.
...but not in California
Once again, however, California is holding the line. The Supreme Court decision only impacts federal regulation of wetlands. States are free to impose their own regulations. And California does.
The primary mechanism for California's regulation of wetland development is the Porter-Cologne Act. Just as the Clean Water Act regulates discharges into "waters of the United States," the Porter-Cologne Act regulates discharges into "waters of the state." California's definition of these waters is broad. In fact, anticipating developments in Washington, the State Water Board in 2019 adopted a definition of wetlands based on the 1986 federal rules. That's right—California now defines wetlands the way the federal government used to define them before Rapanos and Sackett.
Thus, although the EPA and Army Corps will no longer be regulating "adjacent wetlands" in California, the State will continue to protect these wetlands. Anyone seeking to develop or discharge into adjacent wetlands will need a permit from one or more State agencies, potentially including the State Water Board, Regional Water Boards, the Department of Fish & Wildlife, the Coastal Commission, and other agencies.
Developers in California will need to continue to step carefully where wetlands are involved.