Implications for "Adjacent" Waterbodies After Sackett v. EPA

Authors

John C. Colson

Document Type

Comment

Abstract

The Supreme Court’s recent ruling in Sackett v. EPA has rolled back Clean Water Act (“CWA”) protections for many wetlands on private property. Justice Kavanaugh’s little-commented-on concurrence identifies a class of waterbodies now unprotected by the CWA that nonetheless serves vital roles in flood control, pollution management, and habitat conservation. These waterbodies are those that lack a continuous surface connection (the majority’s test) to navigable waterways but are nonetheless “adjacent” to them in that they are separated by a single barrier. Including borrow pits and swamps held behind dikes, as well as the thousands of oxbow lakes near America’s rivers, these adjacent, non-adjoining (“ANA”) waterbodies provide ecological services like flood control, pollutant storage, and habitat that also contribute a great deal of economic value to stakeholders. This Note proposes that, if the federal judiciary or Congress are (as it seems) unable to adopt a test reflecting the vitality of ANA waterbodies, state governments and market actors should implement solutions—in many cases by simply adapting strategies that have already been deployed—to secure the benefits of ANA waterbodies and continue to advance the purposes of the CWA. Indeed, scholarly literature and the history of environmental regulation in the United States suggest that states may be the best vehicle to deploy strategies, specifically incentive-based strategies, to protect ANA waterbodies.

DOI

10.37419/LR.V12.I3.7

First Page

1305

Last Page

1331

Recommended Citation

John C. Colson, Implications for "Adjacent" Waterbodies After Sackett v. EPA, 12 Tex. A&M L. Rev. 1305 (2025).
Available at: https://doi.org/10.37419/LR.V12.I3.7