Our readers may be aware that a recent United States Supreme Court Decision, Sackett v. Environmental Protection Agency, No. 21-454 (May 25, 2023), will affect the federal regulation of wetlands under the Clean Water Act. The good news is that wetlands control at the local level pursuant to Massachusetts’ Wetlands Protection Act, G.L. c. 131, §40 (“WPA”), will remain business as usual. However, it is still important for our readers to understand the significance of this important decision.
In Sackett, the Supreme Court considered the reach of the federal Clean Water Act (“CWA”), which protects large interstate lakes and rivers used for commerce, as well as tributaries of those waters that may carry pollutants downstream and determined that the CWA applied only to wetlands where the wetland in question is adjacent to “a relatively permanent body of water connected to traditional interstate navigable waters” and “has a continuous surface connection with that water.” This represents a substantial narrowing of the recent application of the CWA which, until Sackett, has been applied to any wetland with a “substantial nexus” to adjacent navigable waters. In short, by requiring a “continuous surface connection” the Court has determined that the CWA, and its regulatory and permitting requirements, do not apply to wetlands that lack a physical surface connection to a larger body of water regardless of other hydrologic interactions.
In Massachusetts, wetlands are regulated under the state Wetlands Protection Act regardless of their proximity to waters that are subject to federal control. As the WPA and its implementing regulations, 310 CMR 10, operate independently of the federal CWA, local permitting requirements for municipal Conservation Commissions remain unchanged and groundwater can continue to be protected under the WPA.