The outcome? A swathe of wetlands, formerly swaddled in the CWA’s protective embrace, now find themselves on the outside looking in.
EPA’s top gun, Administrator Michael Regan, voiced his dissent on the Sackett ruling, stating, “While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have a responsibility to align with our state co-regulators, tribes and partners.”
Delving into history, the EPA and Army Corps had earlier banked on the “relatively permanent” yardstick, a vision shared by former Justice Antonin Scalia in 2006’s Rapanos v. United States.
They had also leaned on former Justice Anthony Kennedy’s perspective from the same case, which threaded wetlands with the Clean Water Act if they bore a “significant nexus” to another WOTUS.
Yet, the Sackett case saw a major twist. Five justices deemed Kennedy’s perspective non-compliant.
Consequently, in June, agencies hinted at a forthcoming rule, echoing the Supreme Court’s sentiments.
The Evolution of the “Adjacent” Definition
Before, “adjacent” wetlands were visualized as those “bordering, contiguous, or neighboring … [or] separated from other ‘waters of the United States’ by man-made barriers, natural berms, or dunes.” Now? It simply translates to “having a continuous surface connection.”
