The Supreme Court just shriveled federal protection for wetlands, leaving many of these valuable ecosystems at risk

The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.

The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.

Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.

Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.

Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.

This is an update of an article originally published on Sept. 26, 2022.

This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts. Like this article? Subscribe to our weekly newsletter.

Albert C. Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice from 1998 to 2003. He served as a law clerk to the Honorable Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit and to the Honorable James Browning of the U.S. Court of Appeals for the Ninth Circuit.