What’s Going on With Wetlands? The Supreme Court Takes Another Dive into the “Waters of the US”
Social media was once inundated with the question “is water wet?” But are wet(land) water? The Supreme Court has been asked to determine this very question and the justices will once again attempt to define the boundaries of the Clean Water Act. Depending on the outcome, certain federal protections for wetlands could either be washed away or shored up.
Water is a way of life in Michigan. Beyond manufacturing and industry, a significant portion of Michigan’s revenue is generated from recreation on the Great Lakes. Even the well-known tourism campaign “Pure Michigan” seems to laud the pristine waters of the state. However, Michigan made national headlines with the emergency Flint water crisis beginning in 2014. Again, disaster struck in 2021 with a hauntingly similar crisis of lead-contaminated drinking water in Benton Harbor, Michigan. Thus, clean water has been at the heart of public discourse for Michiganders for years. Clean water is vital for both the health of our communities and the environment. Luckily, the natural world comes with built-in purifiers – wetlands.
Beyond enhancing water quality and mitigating pollution, wetlands provide many other environmental services. For example, wetlands are critical habitats for fish and wildlife species. In fact, wetlands are home to approximately thirty percent of Michigan’s endangered and threatened plants and sixty percent of the state’s endangered and threatened animals. Wetlands also help protect communities from the devastating effects of flooding, which is increasingly crucial in the face of recurring patterns of extreme weather events brought on by climate change.
Despite the essential role of wetlands, they are disappearing. Wetlands are typically either sacrificed in the name of development or degraded by the dumping of industrial waste. Over half of the 221 million acres of wetlands that once dominated the landscape of the lower forty-eight states have been destroyed. Currently the nation’s wetlands are protected under the Clean Water Act (“CWA”). The decision of a pending Supreme Court case, Sackett v. Environmental Protection Agencyhas the potential to make a substantial portion of the wetlands in the United States once again vulnerable to unregulated development.
Oral arguments were heard at the beginning of October 2022. The justices are faced with two major questions: whether adjacent wetlands are protected by the CWA and what the appropriate test should be to determine which wetlands qualify for protections under the act. An adjacent wetland is “bordering, contiguous, or neighboring” to another covered water. The long-standing issue arises from the fact that “navigable waters” as contemplated by the CWA is defined as the “waters of the United States, including the territorial seas.” Such a broad definition leaves much ambiguity as to what in fact qualifies as the waters of the United States. The Environmental Protection Agency (“EPA”) and the Army Corp of Engineers have issued a series of rules in an attempt to clarify the terms, often changing in response to different presidential administrations and influential Supreme Court cases.
The most recent of these cases was Rapanos v. United States. In his plurality opinion, Justice Scalia concluded “waters of the United States” meant “relatively permanent, standing, or continuously flowing bodies of water,” and adjacent wetlands needed a continuous surface connection to such waters. This is the test the Sacketts urge the Supreme Court to apply. On the other hand, most federal courts have applied the “significant nexus standard” which was set out by Justice Kennedy in his concurring opinion in Rapanos. The significant nexus test requires that an adjacent wetland “either alone or in combination with similarly located lands in the region, significantly affect the chemical, and biological integrity of other covered waters more easily understood as ‘navigable.’” By omitting the need for a continuous surface connection between the wetland and a waterbody recognized as traditionally navigable, the significant nexus test offers more expansive protections for wetlands.
So how did the couple from Idaho end up with a case in the Supreme Court? Section 404 of the CWA requires a permit for the discharge of dredges or fill materials in protected wetlands. The Sackett’s began developing their property without permit approval, even though their property contained wetlands and was near Priest Lake. The EPA found the wetlands were federally protected and issued a compliance order to halt the Sacketts from any further development absent a permit. However, a road separates the property in question from the larger tributary emptying into Priest Lake. The Sacketts are contesting the permit requirement, arguing the lack of continuous surface connection caused by the road vitiates the adjacent character of their property.
Given the new conservative majority composition of the Supreme Court, there is a possibility the court will settle on a more Scalian-like interpretation of “waters of the United States.” Conversely, some legal commenters believe the court is unlikely to further strip the regulatory authority of the EPA as it did in the inflammatory West Virginia v. EPA of last term. The line of questioning during oral arguments indicates a bipartisan majority may take the pre-2015 approach, which would allow the federal agencies to interpret and administer the CWA at their discretion until Congress definitively differentiates between the wetlands covered and not covered by the law.
Even if the Supreme Court decides on a narrow interpretation, the wetlands in Michigan might retain their protections. Michigan Wetlands are differently situated from those in many other states. In 1989, Michigan assumed the responsibilities of the Section 404 permitting program, making it the first and one of the few states to do so. Even though states may be granted oversight to regulate development on wetlands under the CWA, states are not precluded from adopting rules that are more stringent than those at the federal level. Consequently, there is reason to believe the current implementation of the Michigan Department of Environmental Quality’s (“MDEQ”) Wetland Program Plan will not be substantially affected.
The MDEQ took over the administration of Section 404 permitting, but also manages Michigan’s wetlands in accordance with major state environmental laws. State legislation demonstrates a commitment to conservation of interests. The Michigan Environmental Protection Act of 1970, part of the larger Natural Resources Protection Act (“NREPA”), provides equitable relief for the protection of air, water, and other natural resources from pollution, impairment, or destruction. The Michigan state constitution mandates the provision of such protections, classifying them as “of paramount public concern” for their importance to the health and safety of the public. Early evidence of the state’s enforcement of its wetland permitting program suggests its regulation is stronger than federal enforcement.
Michigan’s citizenry can also provide a backstop to future threats to wetlands. It did so before when a bill was proposed to revoke protections for an estimated 550,000 acres of wetlands within the state. While Senate Bill 1211 was altered and ultimately approved, the damage was lessened due to persistent lobbying efforts by environmental organizations such as the Michigan Environmental Council and an influx of community members.
Overall, it’s worth keeping an eye out for how Sackett turns out. Despite current state wetlands protections in Michigan, a narrow interpretation of “waters of the United States” by the Supreme Court would signal that the public should be prepared to face-off against industrial and developmental interests. Yet a favorable decision may finally settle the debate over which wetlands are afforded protection under the CWA once and for all.
Sarah Mastrian is a Junior Editor with MJEAL. Sarah can be reached at [email protected].
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 Why are Wetlands Important?Nat’l Park Serv., https://www.nps.gov/subjects/wetlands/why.htm (last visited Mar. 14, 2023).
 Rogue River Nat’l Wet Weather Demonstration Project, Wetlandshttps://www.michigan.gov/egle/-/media/Project/Websites/egle/Documents/Programs/WRD/NPS/Savvy/savvy-wetlands-info.pdf?rev=d505c8fe9262404184c333d2d6993660&hash=48E96BC56AB4FD5457810498A825A6EF.
 In Sackett v. EPA, the US Supreme Court Could Decide What Waters and Wetlands the Clean Water Act ProtectsEarthjustice: Our Stories (Oct. 3, 2022), https://earthjustice.org/feature/sackett-epa-supreme-court-water#:~:text=With%20Sackett%20v.,%2C%20waterfowl% 2C%20and%20other%20wildlife.
 Nat’l Park Serv., supra note 4.
 Thomas E. Dahl, Wetlands Loss Since the Revolution, Nat’l Wetlands Newsl. (Env’t L. Inst., DC), Nov./Dec. 1990, at 16.
 Federal Water Pollution Control Act, 33 USC §§ 1251-1389.
 Sackett v. EPA, No. 21-454, (US argued Oct. 03, 2022).
 Mark Walsh, Navigating the Waters of the New TermSCOTUSblog: A View From the Courtroom (Oct. 3, 2022 at 9:53 PM), https://www.scotusblog.com/2022/10/navigating-the-waters-of-the-new-term/.
 Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004, 3093 (Jan. 18, 2023).
 33 USC § 1362(7).
 See 88 Fed. Reg. at 3005.
 Rapanos v. United States547 US 715 (2006).
 id. at 732, 743.
 Petitioners’ Brief on the Merits at 25-29, Sackett v. EPA, No. 21-454, (US Apr. 11, 2022).
 Pamela King, Pivotal Supreme Court Term Begins with WOTUS WarGREENWIRE (Sept. 28, 2022 at 1:40 PM), https://www.eenews.net/articles/pivotal-supreme-court-term-begins-with-wotus-war/.
 547 US at 780.
 See 33 CFR § 328.3(a)(1) (2023).
 Permit Program Under CWA Section 404: OverviewEPA, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
 earthjustice, supra note 6. Jeff Turrentine, What You Need to Know About Sackett v. EPA, Nat. Res. Def. Council (Sept. 19, 2022), https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa.
 Pamela King and Hannah Northey, Supreme Court Appears to Back EPA in WOTUS WarGREENWIRE (Oct. 03, 2022 at 1:51 PM), https://www.eenews.net/articles/supreme-court-appears-to-back-epa-in-wotus-war/.
 earthjustice, supra note 6.
 Pamela King and Hannah Northey, supra note 23.
 Peter Alpert, Sackett Case Unlikely to Trim EPA Wetland AuthorityBloomberg Law: US Law Week (Oct. 12, 2022 at 4:00 AM), https://news.bloomberglaw.com/us-law-week/sackett-case-unlikely-to-trim-epa-wetland- authorities.
 Merry Goodenough, Public Participation in a State-Assumed Wetlands Permit Program: The Michigan Example, 10 J. Envtl. L. & Litig. 221.
 id. at 223.
 Mich. Dep’t Env’t Quality, Wetland Program Plan: 2019-2024 (Nov. 27, 2018), https://www.epa.gov/sites/default/files/2019-03/documents/mdeq_program_plan_2019.pdf.
 Mich. Comp. L. §324.1701.
 Mich. const. art. IV, §52.
 Merry Goodenough, supra note 20 at 245.
 Jim Malewitz, Michigan House Panel Votes to Gut ‘Radical’ Wetlands ProtectionsBridge Michigan: Michigan Environment Watch (Dec. 18, 2018), https://www.bridgemi.com/michigan-environment-watch/michigan-house-panel-votes-gut-radical-wetlands-protections.
 Joe Bower, Averting Disaster: A Deep Dive into the Lame Duck Wetlands BillMichigan Environmental Council (Feb. 24, 2019), https://www.environmentalcouncil.org/averting_disaster_a_deep_dive_into_the_lame_duck_wetlands_bill.