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SCOTUS Ruling Creates New Definition for Wetlands

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Tuesday, June 6, 2023   

Virginia environmental advocates are not happy with the U.S. Supreme Court's recent decision on the Clean Water Act. The ruling in Sackett versus E-P-A creates a new definition for wetlands covered by the Clean Water Act. In his opinion, Justice Samuel Alito described those wetlands as having continuous surface connection to waters of the United States.

Doctor Wally Smith, vice president of the Clinch Coalition, said legal debate over these wetlands has gone on for some time. He continued these non-contiguous wetlands are much needed to help areas fight off ever-worsening storms.

"If you have things like storm events that produce a lot of runoff that might otherwise make its way into a river, those wetlands can help filter out some of the pollutants that might otherwise make it downstream," he said. "And, they can also capture a lot of that runoff and slow its flow to essentially buffer against things like flood impacts in those downstream waterways."

He added as much as this ruling clarifies what constitutes a wetland, it also creates further questions. One in particular is what happens to a wetland once protected under the Clean Water Act getting fragmented by development. He feels in the coming years, agencies and the legal system will be sorting out these new unanswered questions.

Outside of this ruling, Smith noted Congress could pass new legislation regarding wetland protection. But, due to gridlock it has faced on other legislative issues, he is not sure this will come to pass. It now comes down to states deciding to enhance protections in their own wetland laws, like Virginia has, according to Smith.

"Here in Virginia, we actually have provisions in some of our state wetlands laws that write in exceptions for those isolated wetlands that are maybe in disturbed areas or are smaller," he explained. "That's one place you may see some lawmakers kind of step in and re-evaluate the state protections to see if there are ways to shore those up."

This ruling does not prevent wetlands from being developed over, despite Clean Water Act protections, he continued. The Act's protections call for a more rigorous permitting process for projects being built over protected waters.

Disclosure: Clinch Coalition contributes to our fund for reporting on Climate Change/Air Quality, Environment, Environmental Justice, Nuclear Waste. If you would like to help support news in the public interest, click here.


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