Comment by J.R. Greenwalt
Wetlands are vital natural resources, benefitting humans and the environment as water purifiers, flood buffers, carbon sinks, and sites for recreation. Louisianians certainly understand how important wetlands are, especially in protecting coastal populations from surging floodwaters. Despite their importance, the United States has failed to adequately protect wetlands within its territory. As of 2019, wetlands covered only half of the area they covered in the 1780s, and in the last twenty years, wetlands loss has increased dramatically. The rate of wetlands loss has increased by fifty percent since 2009, resulting in the elimination of over 670,000 acres of wetlands in the lower forty-eight states from 2009 to 2019. The need for strong wetlands protections is ever-increasing, but the United States Supreme Court’s decision in Sackett v. Environmental Protection Agency makes it nearly impossible to impose strong protections at the federal level.
Until 2023, most of the United States’ wetlands were protected under the Clean Water Act (CWA or the Act). Recognizing the many benefits that wetlands provide, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps), the federal agencies that administer and enforce the CWA, have long found that they have jurisdiction over wetlands adjacent to other bodies of water covered
under the Act. Prior to Sackett, the agencies’ understanding of “adjacent wetlands” included those separated from other waters by natural or manmade barriers, not just wetlands contiguous with other waters. Under section 404 of the CWA, no entity can discharge dredged or fill material in these wetlands, thereby eliminating the wetlands’ ability to filter pollutants, absorb floodwater, and more, without first obtaining a permit. However, the United States Supreme Court’s decision in Sackett removed most of those wetlands from the CWA’s coverage, leaving them subject only to scant, piecemeal state regulations. It is unclear what Sackett’s impact on the nation’s wetlands will be, or how states will react to the Court’s decision, but it is clear that the Court’s rollback of CWA jurisdiction poses dire consequences for the environment, the economy, and the population.
Some commentators have theorized that courts could apply the standard that the Supreme Court devised in County of Maui v. Hawaii Wildlife Fund to at least partly mitigate Sackett’s rollback of federal jurisdiction over wetlands, but environmental advocates should not hold out hope that this extension of Maui will prevent the degradation of wetlands in any meaningful way. Unless Congress or the state legislatures take comprehensive action swiftly, there will be few if any regulatory roadblocks to filling and destroying wetlands that Sackett removed from CWA jurisdiction.
Although Maui’s functional equivalence standard could feasibly be applied in this new context to mitigate Sackett’s rollback of CWA jurisdiction over wetlands, in actuality, courts are unlikely to apply Maui in a way that would meaningfully expand wetlands protections under the CWA. This Comment argues that an extension of Maui’s functional equivalence standard would not provide protections for wetlands at the level that section 404 of the CWA’s permit requirement did before Sackett. Part II provides an overview of the federal government’s historical role in regulating acts of pollution in the nation’s waters and wetlands along with a discussion of three notable Supreme Court decisions concerning federal jurisdiction under the CWA. Part III dissects the Court’s recent decisions in Maui and Sackett, focusing on the interpretive approaches that the Court took in each case. Part IV criticizes Sackett’s exclusive reliance on plain meaning analysis of the CWA’s text, explores what result a more functionalist, Maui-like approach would have yielded in Sackett, and explains why an extension of Maui’s functional equivalence standard would not solve the problems that Sackett created. Part V concludes.
About the Author
J.R. Greenwalt. J.D. 2025, Tulane University Law School; B.A. 2020, University of Colorado Boulder.
Citation
99 Tul. L. Rev. Online 27 (2025)