Filling the Sackett Gap: The Private Governance Option

The Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap—the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett’s expansive language, the end of Chevron deference, and the 2024 presidential election, and lower federal courts are constrained by the emergence of the major questions doctrine.

Recognizing these constraints, scholars have turned to state and local governments, but more than half of the states limit their wetlands requirements to be no more stringent than federal requirements, and many restrict the options of local governments.