By Zachary Smith
Introduction
Louisiana is fondly known as the Sportsman’s Paradise.[1] This Paradise is beloved for many reasons, but for hunters and anglers, the reason is the rich natural resources and diverse landscapes that make Louisiana especially appealing.[2] After a recent Supreme Court case, Sackett v. Environmental Protection Agency, however, this natural beauty and economic draw is in severe danger.[3] It is not just Louisiana that is in trouble, though; it is estimated that approximately 200 million acres nationwide remain unprotected as a result of this case.[4] This case leaves wetlands across the nation—roughly the same land area as that of Texas and Louisiana combined—in immediate jeopardy.[5] This amount of land seems almost unfathomable, but it is now left completely vulnerable and without federal protection.[6] Without any protection, wetland loss will go unchecked leading to incalculable effects on wildlife, a significant decrease in water quality, a severe downturn in industries that rely on non-polluted water such as fishing, and potential rampant flooding.[7]
I. Background
In 2023, the United States Supreme Court rendered a decision that significantly narrowed the scope of the term, waters of the United States (WOTUS).[8] This term is significant because it governs whether the Clean Water Act (CWA) protects certain waters and wetlands.[9] The overarching objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[10] Congress has amended the CWA numerous times to meet changing needs, but the Act has never deviated from its primary goals.[11] Before Sackett, the CWA protected wetlands that had a continuous surface connection to WOTUS, as well as wetlands that were part of a significant nexus with WOTUS.[12] The new WOTUS standard now only protects wetlands with a continuous surface connection to a WOTUS, meaning the wetland’s surface water must be indistinguishable from that of the WOTUS.[13] One study asserts that roughly 63 percent of wetlands previously protected under the CWA are now unprotected.[14]
Three entities are tasked with enforcing and overseeing the CWA and its efforts: the Environmental Protection Agency (EPA), the United States Army Corps of Engineers (Corps), and state organizations and governments.[15] While the Corps and state entities have important roles, the EPA is the central entity that oversees the Act’s enforcement and implementation.[16] The post-Sackett standard, as implemented by the EPA, contains significant gaps in practical application, often leaving courts to make discretionary decisions without clear guidance from the Sackett ruling.[17] One of the most prominent debates surrounding the Sackett ruling was whether the definition laid forth in the majority was contrary to the CWA’s statutory authority because the definition confused the terms “adjoining” and “adjacent” and allowed, incorrectly, only adjoining wetlands to be protected[18]Other open questions included how man-made barriers affect the test, whether a temporary disconnection of water precludes protection, and many other questions that the Court refused to answer in its ruling.[19]
The EPA, in an attempt to clarify the confusion left in the wake of Sackett, recently issued a memorandum outlining how the agency plans to enforce the new WOTUS definition.[20] In doing so, the EPA only muddied the waters further and brought life to the fears and opinions expressed by Justice Kavanaugh in his Sackett concurrence.[21] The agency effectively substituted the definition of “adjacent” wetlands for that of “adjoining” wetlands, significantly narrowing the protections for wetlands.[22]Specifically, the EPA excluded any adjacent wetlands that lack a continuous surface connection to a jurisdictional water because of objects such as berms, levees, dikes, and any wetlands that have only an intermittent hydrological connection.[23] Both are prevalent in Louisiana.
II. Problems Ahead for Louisiana
The narrowed definition of WOTUS has substantially lessened the scope of CWA protection of wetlands nationwide.[24]The lack of state programs to supplement or supersede the removed CWA protections exposes these wetlands to the threat of pollution and damage.[25] Through its Sackett decision, the Court endangered the wetland ecosystems, the states in which the wetlands reside, and even the citizens of those states.[26] Wetland pollution and damage are more likely to occur now that wetlands are unprotected in many of the states that relied on the broad scope of WOTUS to provide protections, rather than implementing their own state laws.[27] If these wetlands remain unregulated from pollution, development, and other activities, the consequences could be catastrophic.[28] Wetlands are a non-renewable resource; if they are not protected now, rampant flooding, insurance spikes, incalculable effects on wildlife, infrastructure failure, and even death are all possible.[29]
The new WOTUS standards and EPA enforcement guidelines are especially impactful in Louisiana due to the state’s geography and terrain.[30] Additionally, Louisiana has no statewide program to protect wetlands; the state is totally reliant on the WOTUS definition to protect its wetlands.[31] This gap is problematic because Louisiana is home to 15 percent of freshwater wetlands and 40 percent of salt marshes remaining in the United States.[32] With a sizeable economic output from wetlands—and water being the state’s most abundant natural resource—Louisiana feels the effects of unprotected wetlands more than other states.[33] Despite their importance, wetlands are quickly disappearing and their replenishment is near impossible.[34] Thus, wetland protection is key to the state’s interest. Only the Louisiana Coastal Zone, which makes up a fraction of Louisiana’s wetlands, enjoys some limited protections.[35] Therefore, reform measures are urgently needed to protect Louisiana’s wetlands. This post proposes two solutions to remedy the lack of protections available for Louisiana’s wetlands in the wake of Sackett.
III. The Congressional Approach
The first proposed solution is for the United States Congress to amend the Clean Water Act. In this amendment, Congress should clarify which waters the Act is meant to protect. Congress should institute the adjacent wetlands standard used in enforcement procedures and agency practice for decades.[36] This standard was outlined succinctly by Justice Kavanaugh in his Sackett concurrence.[37] As defined by Justice Kavanaugh, the adjacent wetlands standard means, “a wetland is ‘adjacent’ to a covered water (i) if the wetland is adjoining—that is, contiguous to or bordering—a covered water—or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”[38] By adopting Kavanaugh’s definition, Congress would empower the CWA to define which wetlands it protects, rather than leaving this decision to the Supreme Court. It would also enable the protection of many wetlands that are currently unprotected, while addressing key concerns raised by the Sackett majority, such as preventing the definition from being overly extended to cover distant, unrelated wetlands.[39] Another positive aspect of this solution would be taking the power to change the definition out of the hands of the EPA, which has tampered with the definition of WOTUS incessantly for years.[40] As different presidential administrations came into office, they would instruct the EPA to amend the interpretation of WOTUS to fit their needs, leading to a definitional back-and-forth across decades and presidencies.[41] This back-and-forth continues to happen as President Trump’s EPA seeks to provide a “clear and simplified” definition by amending the Biden Administration’s definition.[42] The Biden Administration amended the definition after President Trump changed it in his first term through the notice and comment process and publication in the Federal Register.[43] In amending the WOTUS rule from President Trump’s first term, President Biden sought to put more of the regulatory power over bodies of water back into the hands of the federal government, rather than in the hands of the state governments to whom President Trump had vested much of the power.[44] If Congress were to take action and clarify the definition, it would remove much of the EPA’s discretion in determining how to enforce WOTUS protections and would solidify that wetlands have more defined protection that does not waver with changing governance and executive action.
IV. The Louisiana Approach
The second proposed solution is divided into two routes. First, the Louisiana legislature should draft a bill that proposes an entirely new system that protects wetlands statewide. With no current statewide protections, new state legislation would allow for protection from future changes in the WOTUS definition and enable Louisiana to regulate its waters as it sees fit. This new system should include the adjacent wetlands standard and provide an exception for wetlands deemed of significant importance, which would allow the legislature the freedom to act in what it considers to be the state’s best interest. This solution has the potential to be time-consuming, given the necessities of research and planning involved in the creation of such a system; however, it is the most thorough option as the state legislature would narrowly tailor the system to fit the state’s needs.
Second, if a new system cannot be agreed upon or completed promptly, an alternative solution is for the Louisiana state legislature to expand the Louisiana Coastal Zone to protect other, more inland, wetlands now that inland wetlands lack CWA protection post-Sackett. Although this solution is not perfect and would require adjustments to cover all wetlands, it offers the legislature a faster way to address the issue as compared to the previous approach.
Conclusion
Ultimately, both of these solutions would provide much-needed protection to Louisiana’s wetlands, which lost coverage under the narrowed definition of WOTUS in Sackett. While both solutions would be ideal for solidifying protection, even the implementation of just one is a substantial step in the right direction. Without any action, Louisiana’s wetlands are at risk of damage, at best, or, at worst, permanent and catastrophic destruction.[45]
[1] See Louisiana, Cong. Sportsmen’s found., https://congressionalsportsmen.org/state-profile/louisiana/ [https://perma.cc/RV3Z-5TYG] (last visited July 13, 2025).
[2] See id.
[3] See Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023).
[4] See, e.g., Delaney Dryfoos, Louisiana’s inland, non-tidal wetlands are most at risk to lose protections from weakened Clean Water Act, The Lens(Oct. 18, 2023), https://thelensnola.org/2023/10/18/louisianas-inland-non-tidal-wetlands-are-most-at-risk-to-lose-protections-from-weakened-clean-water-act/ [https://perma.cc/YMH7-4FYW].
[5] E.g., Michael Dot Scott, Louisiana’s Six Largest Land Owners, 97.3 The Dawg, https://973 thedawg.com/louisianas-six-largest-land-owners/ [https://perma.cc/WUX6-S4JS] (updated Jan. 26, 2024); e.g., How Big is Texas? You Won’t Believe How Huge It Is!, Texas Proud (July 10, 2022), https://texasproud.com/how-big-is-texas-its-h uge/#:~:text=Texas%20is%20the%20second%2Dlargest,square%20miles%20or%20171%2C902%2C080%20acres [https://perma.cc/6LNK-GE26].
[6] See, e.g., Harry Vorhoff, Waters of the United States: Sackett v. EPA Briefing, Governor’s Off. of Coastal Activities (June 14, 2023), https://coastal.la.gov/wp-content/uploads/2023/06/HARRY-WOTUS-Briefing.pdf [https://perma.cc/42WN-2G6L].
[7] See James M. McElfish, Jr., What Comes Next for Clean Water? Six Consequences of Sackett v. EPA, Env’t Law Inst. (May 26, 2023), https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences -sackett-v-epa [https://perma.cc/6FQM-D7WS]; see also Hannah Druckenmiller, Wetland Conservation is Worth the Cost, Resources (Apr. 18, 2022), https://www.resources.org/common-resources/wetland-conservation-is-worth-the-cost/ [https://perma.cc/Z3CT-2NZV]; e.g., Haley Gentry, The Fallout of Clean Water Act Administration in a Post- Sackett Regulatory Landscape, Tulane Inst. on Water Res. L. & Pol’y 1, 12 (2023), https://www.tulanewat er.org/_files/ugd/32079b_2dd358f90e7b4dc19abe83ca5d193fe8.pdf [https://perma.cc/E7EM-LJ6M].
[8] E.g., Gentry, supra note 7.
[9] Federal Water Pollution Control Act, 33 U.S.C. § 1251 (2002), https://www.epa.gov/sites/default/files/2017-08/documents/federal-water-pollution-control-act-508full.pdf [https://perma.cc/SZ6A-567B]; see Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023)
[10] 33 U.S.C. § 101.
[11] See, e.g., 50th Anniversary of the Clean Water Act, U.S. Env’t Prot. Agency, https://www.epa.gov/ system/files/documents/2022-10/CWA50%20Fact%20Sheet_101722.pdf [https://perma.cc/P2NN-J4VP] (last visited Aug. 11, 2025); see generally Environment and Natural Resources Division, The Clean Water Act, U.S. Dep’t of Just., https://www.justice.gov/enrd/water [https://perma.cc/4DZZ-EC7P] (updated May 29, 2025) (breaking down a number of different CWA evolutions since its enactment in 1972).
[12] E.g., Brigit Rollins, Waters of the United States: Timeline of Definitions, The Nat’l Agric. L. Ctr., https://na tionalaglawcenter.org/wp-content/uploads//assets/articles/WOTUS-Timeline-23.pdf [https://perma.cc/67VT-YDPC] (updated Sep. 26, 2023).
[13] See, e.g., Vorhoff, supra note 6.
[14] E.g., Gentry, supra note 7.
[15] See Federal Water Pollution Control Act, 33 U.S.C. § 1251–1252 (2002), https://www.epa.gov/sites/default/ files/2017-08/documents/federal-water-pollution-control-act-508full.pdf [https://perma.cc/SZ6A-567B]; see, e.g., Clean Water Act, The Nat’l Agric. L. Ctr., https://nationalaglawcenter.org/overview/cw/ [https://perma.cc/RT5A-9MLF] (last visited Aug. 11, 2025).
[16] See, e.g., Clean Water Act, supra note 15.
[17] See Sackett v. Env’t Prot. Agency, 598 U.S. 651, 716 (2023) (Kavanaugh, J., concurring).
[18] See, e.g., Vorhoff, supra note 6; see Sackett, 598 U.S. at 716 (Kavanaugh, J., concurring).
[19] E.g., Sheila M. Olmstead & Matt Fleck, The Future of the Waters of the United States after Sackett v. US Environmental Protection Agency, Resources (Aug. 18, 2023), https://www.resources.org/common-resources/the-f uture-of-the-waters-of-the-united-states-after-sackett-v-us-environmental-protection-agency/ [https://perma.cc/4PLT-X9MD].
[20] See generally Memorandum to The Field Between The U.S. Department of The Army, U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency Concerning the Proper Implementation Of “Continuous Surface Connection” Under the Definition of “Waters of the United States” Under the Clean Water Act, U.S. Env’t Prot. Agency (Mar. 12, 2025), https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf [https://perma.cc/TV97-2XE4].
[21] See generally id.; Sackett, 598 U.S. at 725–28 (Kavanaugh, J. concurring).
[22] See generally Memorandum to the Field, supra note 20.
[23] See, e.g., id.
[24] E.g., Gentry, supra note 7.
[25] See, e.g., Dryfoos, supra note 4.
[26] See, e.g., id.
[27] See, e.g., id.
[28] See Druckenmiller, supra note 7.
[29] See McElfish, supra note 7; see also Druckenmiller, supra note 7; e.g., Gentry, supra note 7.
[30] See Office of Coastal Management, A Coastal User’s Guide to the Louisiana Coastal Resources Program, La. Dep’t of Nat. Res. I-1, II-1, https://data.dnr.la.gov/LCP/LCPHANDBOOK/FinalUsersGuide.pdf [https://perma.cc/4C4H-HW8W] (revised Jan. 2015).
[31] E.g., id.
[32] See Sarah Burt et al., State Wetland Program Evaluation: Phase III, Env’t L. Inst. 1, 119 (Mar. 2007), https://www.eli.org/sites/default/files/eli-pubs/d17_05.pdf [https://perma.cc/WU9G-J4ZC].
[33] E.g., Office of Coastal Management, supra note 30.
[34] See id.
[35] E.g., id.
[36] Sackett v. Env’t Prot. Agency, 598 U.S. 651, 717–18 (2023) (Kavanaugh, J. concurring).
[37] Id. (Kavanaugh, J. concurring).
[38] Id. (Kavanaugh, J. concurring).
[39] Id. at 667 (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 596 (2016)).
[40] See, e.g., Steve P. Mulligan, Evolution of the Meaning of “Waters of the United States” in the Clean Water Act, Cong. Rsch. Serv. 1, 24 (Mar. 5, 2019), https://crsreports.congress.gov/product/pdf/R/R44585 [https://perma.cc/2UWK-CEN8].
[41] See, e.g., id.
[42] Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule, U.S. Env’t Prot. Agency, https://www.epa.gov/newsreleases/administrator-zeldin-announces-epa-will-revise-waters-united-states-rule [https://perma.cc/53JD-BE4T] (last updated Mar. 12, 2025).
[43] See, e.g., Rollins, supra note 12.
[44] See, e.g., id.
[45] See, e.g., Dryfoos, supra note 4.