Bog-ged Down by Sackett: Strategies for Wetland Protection in Texas

Abstract

The Clean Water Act (“CWA”) has been one of the most powerful tools for protecting the nation’s waterways since it was first passed in 1972. However, there has long been ambiguity over the scope of the authority it grants for the regulation of wetlands. In May 2023, the Supreme Court resolved this question in Sackett v. Environmental Protection Agency. The effect of Sackett will be to remove significant amounts of previously regulated wetlands from federal jurisdiction. Federal legislative responses are unlikely, and while there are federal programs that can help temporarily fill the gap and bring some wetlands back under federal jurisdiction, they cannot act with the same force and breadth as the CWA. This is likely to have a serious impact in the state of Texas, which has no wetland protection laws beyond the federal program. Accordingly, this Note argues that the many states—including Texas—currently lacking a wetland protection law should enact comprehensive wetland protection programs. To determine the contents of these programs, this Note analyzes successful programs in other states and makes recommendations for important elements of a new state program