How does SCOTUS' Sackett v. EPA Decision Affect You?

Before we explore the question of wetland status following the recent Supreme Court (SCOTUS) ruling, we must understand the current extent of wetlands within the United States. The National Wetland Inventory (NWI) Program of the U.S. Fish and Wildlife Service (USFWS) currently curates the most comprehensive spatial datasets.

These datasets are continually refined, using methods that increasingly implement remotely sensed data, machine learning, GIS tools, as well as field assessments to document the boundaries and relative quality of the wetlands.

"Strategic planning and coordination are required to reverse longstanding wetland loss trends within the U.S., and a prerequisite is a contemporary National Wetlands Inventory (NWI) Dataset. Routine maintenance of the NWI dataset is required to ensure its benefit to decision-makers and to help conserve America’s remaining wetlands." - Megan Lane, Chief Scientist, USFWS, Ecological Services, NWI

The map below displays the most recent dataset from the NWI program. These data are also accessible through the  Wetlands Mapper  developed by USFWS.

Wetlands are continually impacted throughout the country. Some of these impacts are illicit, but most occur even after the appropriate permits are obtained. In some cases, an area functioning as a wetland may not be regulated by federal, state, or local agencies.

Every decade, the NWI program releases a report for Congress on the national status and trends regarding wetlands. The next report, the sixth of its kind, is scheduled for publication in 2023. While data for the forthcoming report is still under analysis, it is important to reflect on trends identified in the previous edition. That report, Status and Trends of Wetlands in the Conterminous United States 2004 to 2009, concluded:

"Wetland area declined by an estimated 62,300 acres (25,200 ha) between 2004 and 2009."  - Status and Trends of Wetlands in the Conterminous United States 2004 to 2009

The map below uses spatial data to document and classify land cover within the U.S. on five-year cycles, and is sourced from the National Land Cover Database (NLCD), which is produced by the Multi-Resolution Land Characteristics Consortium (MRLC). The map illustrates land cover changes from 2001 to 2019 in an area west of Huntsville, AL, which has experienced rapid development over the last several years. Swiping to the left shows substantial increases in reddish coloration, indicating the transition of agricultural lands, open fields, or forests into developed areas.

At this rapid pace of land cover change, it is imperative to document wetland extents and their relative quality in near real-time.

Federal jurisdiction over Waters of the United States (WOTUS) have continually evolved since court decisions in  Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers  and   United States v. Rapanos.  The interpretation of what comprises a WOTUS has been debated and redefined under each presidential administration since that time. Aside from the rules established to define WOTUS, the regulations are further confused through lawsuits that stay the implementation of various rules. The court rulings have resulted in uneven implementation of rules across different states. These continual regulatory changes make it difficult to fully understand what comprises a WOTUS at any given time.

Scroll through the illustrations below to visulize how regulations have shifted over the past several years.

In November 2021, the Biden administration released a proposed rule redefining WOTUS and simultaneously rescinded the Navigable Waters Protection Rule. The new rule was finalized on December 30, 2022 and went into effect on March 20, 2023. The rule is more restrictive than the Navigable Water Rule, and generally restored the same protections in place prior to 2015.

Leading up to and after the new WOTUS rule went into effect, 27 states filed and won lawsuits challenging its scope, resulting in injunctions. There has therefore been uneven application of the 2023 Rule throughout the United States. The states where injunctions are currently in place are being regulated under the  Pre-2015 Regulatory Regime . The EPA has prepared a summary of the litigation and the current status of WOTUS at the following  link .

Scroll through the map below to see what Federal definition of WOTUS currently applies in your state.

On May 25, 2023, the Supreme Court of the United State ruled on  Sackett v. Environmental Protection Agency et al.  This ruling significantly altered how WOTUS are defined moving forward. Some of the most significant excerpts include:

• Significant Nexus no longer considered
•  “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” 

The implications of this ruling are currently under debate, and there is once again substantial uncertainty around the definition of WOTUS. Federal regulatory agencies are  reviewing the decision and determining the next steps . Given that it took nearly a year for the regulatory agencies to issue informal guidance after the 2006 Rapanos ruling and additional year for publication of the formal 2008 Rapanos Guidance, the uncertainty regarding what represents a WOTUS could persist for the foreseeable future.

This uncertainty has definite implications for Ecobot customers, the regulated community, and the general public.

In the past year, the Sackett decision has been met with substantial criticism from federal agencies, including representatives from the Corps, EPA, and CEQ, with officials advocating for innovative approaches to overcome lost protections.

• White House Council on Environmental Quality (CEQ) Chair Brenda Mallory has called the ruling  “one of the largest judicial rollbacks of environmental protections in U.S. history.” 
• Assistant Secretary of the U.S. Army Corps of Engineers (Civil Works) Michael Connor released an  internal memo  in March outlining some workarounds and solutions for bolstering environmental protections to make up for the severely limited policy.

These calls to action underscore the need for resilience and adaptability in water management strategies, reimagining water protection by utilizing every tool and resource at all government levels to protect our nation’s waters.

In light of the scaled-back federal oversight, Mallory and Connor have proposed workarounds including:

• Cooperative Agreements with States: States can enact stricter environmental protections, especially those who face unique water-related challenges like increased flooding. 15 states already have broad water policies beyond WOTUS, and eight more have more limited water policies. The remainder are reliant on WOTUS protections at the federal level, as shown in the  map above .
• Conservation Agreements with Private Parties: These partnerships can promote sustainable practices.
• Incentives for Sustainable Development: Encouraging more sustainable land use and development practices through financial incentives.
• Protective and Mitigation Actions: Strategies include Aquatic Ecosystem Restoration; Technical Assistance Programs that support development of water-related programs or regulations like watershed and restoration planning assistance; integration of nature-based solutions into Civil Works project planning, design, and construction; and support compensatory mitigation for impacts to WOTUS.  Read more in Connor’s memo .

There is ongoing litigation challenging how the Sackett ruling has been interpreted by the EPA and the Army Corps, with cases in Texas, North Dakota, and North Carolina arguing that recent regulatory revisions remain arbitrary. The outcome of these cases could clarify the scope of federal environmental oversight further. Since May 2023, Sackett has appeared in subsequent cases a total of 39 times: examined in five, discussed in 10, cited in 23, and mentioned in one. 

Experts predict that agency responses may shift from proactive jurisdictional determinations to reactive enforcement measures, focusing on significant violations. The definitive nature of the Sackett decision suggests lasting impacts, yet future legal and political developments—such as election outcomes—could influence its interpretation and implementation.

Overall, while the Sackett v. EPA decision has set a new precedent, the dialogue it has initiated among policymakers, legal experts, and environmentalists is likely to spur ongoing debates and potentially pave the way for new legislative and regulatory adjustments. As we navigate these changes, the collective effort toward sustainable water management remains more critical than ever.

 Read more: Ecobot spoke with D.C.-based environmental attorney and WOTUS expert Fred Wagner about this first year in a post-Sackett regulatory landscape.  Learn Wagner’s insights on current and pending legislation, predictions for the future, and what it would take to swing the pendulum back toward favorable wetland protections.

Environmental consultants are commonly tasked with identifying the extents and characteristics of all water resources present within an area of investigation, allowing for a thorough characterization of a site. This fieldwork enables the consultant to present their clients with a detailed overview of findings, and provide guidance on the regulatory status for each of the features.

While conducting this work, the environmental consultant should consider the following:

• Uncertainty around the jurisdictional determination (JD) process until development of guidance by the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA)
• Delineation process proceeds as normal
• Imperative to thoroughly document landscape position and surface connectivity for delineated wetlands           
• Ensure understanding of state or local (i.e., municipalities, counties) regulations

The development of JD guidance in response to the court ruling is not a rapid process, and delays in the issuance of JDs should be expected. It is important that the regulatory agencies accurately interpret the ruling prior to implementation to avoid future litigation.

When working in an unfamiliar region of the country, the consultant should understand both the federal WOTUS definition and state/local regulations. Some states and local agencies have more rigorous protections for waters than those of the federal government. In that case, the current ruling may not significantly alter overall project permitting requirements. The Environmental Law Institute is currently working on a draft report entitled " FILLING THE GAPS Strategies for States/Tribes for Protection of Non-WOTUS Waters" . This report provides a summary of alternative mechanisms for protecting some non-WOTUS waters. Scroll around the map below to see what states are entirely reliant on the WOTUS regulations for the protection of aquatic resources.

The extent of the regulated community is expansive and can include entities such as:

• Commercial and residential developers
• States and municipalities
• Federal agencies
• Private landowners
• Non-profit organizations

While the Sackett ruling will result in fewer impacts to jurisdictional resources (e.g., wetlands, ephemeral streams), it has also brought about uncertainty. There is effectively a pause in the review process for jurisdictional determinations (JDs) and permits until the USACE and EPA develop guidance to best interpret the ruling. These delays have become relatively common in recent years due to court decisions and continually changing WOTUS definitions.

The most significant unknown for the regulated community is how the ruling will alter project timelines, which can affect the financial viability or construction logistics of a project. For example, guidance documents in response to previous policy changes have resulted in delays due to the nullification of previously issued JDs, which in turn affects the permit process.

The map below shows the locations of Individual Permits currently in process and Approved JDs processed during 2022 (USACE  Permit Finder , June 9, 2023). This provides perspective on the volume of permits and JDs that may need to be revisited across the country in response to the ruling. By no means is this a comprehensive list, as it does not include Preliminary JDs, Nationwide Permit actions, and requests that have yet to be logged. The anticipated processing delays will be exacerbated by this backlog of projects in addition to the ongoing submittals.

While the regulated community should anticipate project delays associated with permitting, there are steps they can take to ensure they are minimally effected by the ruling:

• Stay abreast of regulatory updates and guidance documents issued by the USACE and EPA
• Communicate with applicable regulatory agencies reviewing your project
• Ensure that all previously submitted data pertaining to aquatic resources (i.e., streams, wetlands, waterbodies) considers the implications of the ruling:
  • Presence/absence of surface connectivity
  • Type of feature providing connectivity and flow status, if present
  • Distance to jurisdictional waters

As alluded to earlier, it is also important that the regulated community closely follow changes to state and local (i.e., municipalities, counties) regulations. These entities may develop more rigorous regulations pertaining to aquatic resources in order to counter the reduction in federal jurisdiction.

While it is difficult to fully quantify the affect that this ruling will have on a typical citizen of the United States, the question needs to be examined from both an economic perspective and one that considers the ecological and recreational benefits of protecting water resources.

Economic drivers can result in either long or short-lived benefits for local communities. Increases in residential and commercial development are anticipated since the current ruling would remove regulatory hurdles for sites previously deemed problematic and not financially practicable. The increased development would directly result in rising home inventories and additional commercial amenities. This would provide employment opportunities and revenue generation through taxes and impact fees. These increased revenues would then be available for state and local communities to fund infrastructure, schools, and public safety.

Many people, however, prioritize ecological and recreational benefits associated with water resources over economics. The protection of these resources is imperative to preserve important ecosystem functions. For example, wetlands play a critical role in the regulation of floodwaters, provide fish & wildlife habitat, and serve to increase water quality through the filtering of sediments and pollutants.

The benefits of these ecosystem functions are not always apparent and removing protections will result in increasing resource losses throughout the country. It's expected that the increasing losses of aquatic resources will eventually manifest itself through disruptions to water supply sources and degradation of waters used for recreation.

While the theme of this StoryMap is intended to be primarily educational, we would be remiss to neglect one of the most glaring issues pertaining to aquatic resources...

How do you protect aquatic resources if you don't know where they are?

While agencies such as the USFWS work diligently to document the status of wetlands within the United States, their job is complicated due to a disconnect between the scientific and regulatory community. It is difficult to measure how many delineation forms have been prepared and submitted to regulatory agencies since the inception of standardized wetland delineation protocols in the late 80's.

This standardization has resulted in millions of hard copy or PDF delineation forms having been submitted to regulatory agencies. Viewed cumulatively, that is several million data points pertaining to hydrology, vegetation, and soils across the country. Those data have either been destroyed or don't exist in a usable format for database import or spatial analyses. Upon submittal to regulatory agencies those data became public record and should have been used for the comprehensive documentation of wetlands and their attributes.

In recent years, there has been a proliferation of various automated PDF forms and Microsoft Excel templates for collecting environmental data on wetlands, streams, and other natural resources. While these tools may streamline data entry, the reporting of those data is no different than a hard copy form. The templates lack uniformity since they have been developed many times over by various consulting firms and regulatory agencies. It is beyond time to address this issue and ensure that environmental data are collected and reported in a usable format following a digital standard with spatial references. The digital standards would be applied to the Ecobot platform, but could also then be utilized by scientists using software such as Esri's Survey 123 and Field Maps or proprietary tools.

Ecobot is taking the lead in connecting people to the planet with better technology and more intelligent data. We’ve stress tested over 150K delineation reports on our platform, refining the data standards for normalization of wetland data since 2018. We would love to work with the appropriate government and regulatory agencies to develop an international data schema standard for data collection and reporting pertaining to wetlands and other natural resources. This crucial step is necessary to further refine our baseline knowledge of important ecological systems throughout the country. The compilation of these data in a usable format is more imperative than ever to better understand fine-scale trends (i.e., areal extents, relative quality). The use of satellite and aerial imagery, LiDAR data, and machine learning are all important tools, but they don't replace field-collected data.

We pride ourselves in how we helped our customers be more efficient and effective wetland scientists over the last several years. If society continues to regulate natural resources at the whim of politics we are going to lose the battle against climate change.

Join us on this journey as we seek partners to depoliticize the relationship between economic progress and protecting critical natural resources.

Learn more about how  Ecobot  is working towards this vision.