Are Wetlands Really Wet? How the Supreme Court Determines Jurisdiction Over Wetlands

Written by Will Frankenberry

Edited by Kaitlyn Baker and Jack Siegel

This article evaluates the problems of legislative vagueness in the Clean Water Act. When the Act was created, it did not set forth exact limits regarding which bodies of water the Environmental Protection Agency was empowered to regulate, creating confusion for both private property owners and land developers. The Act’s vagueness requires the Supreme Court to intervene when there is disagreement surrounding the Agency’s jurisdiction over a given body of water. There have been numerous recent Supreme Court cases challenging the Agency’s jurisdiction, the most recent being the yet-undecided Sackett v. EPA. In Sackett, the Supreme Court must determine which test—either the continuous surface connection test or the significant nexus test—is appropriate in determining which bodies of water can be regulated by the Agency. The Court’s decision could either greatly expand or greatly restrict the ability for the federal government to regulate wetlands.