U.S. Supreme Court Issues Ruling in Sackett v. Environmental Protection Agency

06.20.2023

On May 25, 2023, the United States Supreme Court issued its opinion in Sackett v. Environmental Protection Agency, which narrowed the scope of federal regulatory authority under the Clean Water Act (“CWA”) concerning wetlands that are relatively-permanently connected to other federal waters. In its 5-4 decision, the Court held that to be considered waters of the United States, wetlands and other water features must be indistinguishable from traditional navigable waters and must also have a continuous surface connection to those water features. In arriving at its decision, the Court applied a new two part test to determine jurisdiction over adjacent wetlands: (1) the adjacent body of water must independently constitute a “water of the United States,” and (2) the wetland must have a continuous surface connection with the adjacent body, making it difficult to determine where the adjacent “water” ends and the wetland begins. Sackett’s primary impact comes in the Court’s departure from the previously accepted “significant nexus” test, under which a significant nexus between a water feature and traditional navigable water allowed the water feature to be considered a water of the United States.

After purchasing a small lot in 2004 near Priest Lake in Idaho, Michael and Chantell Sackett began backfilling the lot in preparation for the construction of a new home. The Environmental Protection Agency (“EPA”) notified the couple that the backfilling violated the CWA’s prohibition on the discharge of pollutants into the waters of the United States and issued a compliance order, threatening over $40,000 per day in fines if the couple did not comply with a Restoration Work Plan provided by the EPA. According to the EPA, the Sacketts’ lot was adjacent (separated by a 30-foot road) to an unnamed tributary which fed into a non-navigable stream that fed into the traditionally navigable Lake Priest. The Sacketts filed suit, claiming that the EPA lacked jurisdiction because the wetlands on their property were not “waters of the United States,” making the fines against them inappropriate. After the suit was initially dismissed, the United States District Court for the District of Idaho entered summary judgment in favor of the EPA, which the Ninth Circuit Court of Appeals affirmed. The Ninth Circuit held that the CWA covered adjacent wetlands with a significant nexus to traditional navigable waters, and that the Sacketts’ lot met that standard. The Supreme Court disagreed, unanimously concluding that the Sacketts’ lot could not be considered waters of the United States. However, the Justices could not agree on the appropriate criteria for determining what should be considered waters of the United States, leading to multiple concurring opinions. Justice Alito wrote for the five-member majority; Justice Thomas concurred, joined by Justices Gorsuch and Kagan; Justice Kagan concurred, joined by Justices Sotomayor and Jackson; Justice Kavanaugh also concurred, joined by Justices Sotomayor, Kagan, and Jackson.

The majority opinion, written by Justice Alito, chose to modify and adopt the test for waters of the United States established previously in Rapanos v. United States. The majority agreed with the Rapanos plurality that “waters” (as used in the CWA) concerned only relatively permanent, standing, or continuously flowing bodies of water forming geological features ordinarily described as streams, oceans, rivers and lakes. Building on the Rapanos plurality’s conclusion, the Court held that the jurisdiction granted by the CWA extended only to wetlands with a continuous surface connection to bodies that constitute “waters of the United States,” so that they are indistinguishable from those waters. The majority acknowledged a single exception in their decision, recognizing that the requisite surface connection may be temporarily interrupted due to natural phenomena such as tides or dry spells.

As mentioned above, the concurring Justices differed on how and why geologic water features should be determined to be “waters of the United States.” Justice Thomas emphasized the prior interchangeable usage of the terms “waters,” “waters of the United States,” and “navigable waters,” to show that the jurisdiction granted by Congress through the CWA is tethered to traditional authority over navigable waters. Justice Thomas ultimately approved of the majority’s decision because it “curbs a serious expansion of federal authority that has simultaneously degraded States’ authority.”

Justice Kagan criticized the new test adopted by the majority and argued that the Court should have instead deferred to the test established in the language of the CWA. The CWA was enacted in reaction to a period of environmental crisis in the United States with the purpose of reducing and controlling pollution of the nation’s waters. According to Justice Kagan, the Court’s new test constitutes a means of usurping Congress’s decision-making power on environmental policy by disallowing the CWA to function as Congress enacted it.

In his concurring opinion, Justice Kavanaugh agreed with the majority’s decision to reverse the Ninth Circuit’s judgment and their refusal to adopt the “significant nexus” test for determining wetland jurisdiction under the CWA. However, Justice Kavanaugh did not approve of the majority’s decision to narrow the CWA’s coverage to only adjoining wetlands by requiring a continuous surface connection while excluding “adjacent” wetlands in contravention to the language of the CWA.

This decision, along with other recent court decisions enjoining implementation of the 2023 rule (Revised Definition of “Waters of the United States”) issued jointly by the EPA and Army Corps of Engineers in certain states, creates a situation of regulatory uncertainty. In states where the 2023 rule has been enjoined, the agencies have been instructed to interpret “waters of the United States” consistent with the pre-2015 regulatory framework. California is not currently one of the states in which the 2023 rule has been enjoined. The agencies are currently providing a map depicting which operative definition of “waters of the United States” is generally applicable in states across the country. There are also other pending challenges to the 2023 rule that raise issues other than those addressed in Sackett.

The EPA and the Army Corps of Engineers are likely to return to the pre-2015 regulatory framework for determining jurisdiction under the CWA until the 2023 rule is replaced with one consistent with the Sackett decision. The Sackett majority did not expand on what qualifies as a permissible interruption to surface connection under the exception, and subsequent litigation is likely to concern water features raising such issue. Additionally, guidance issued by the agencies interpreting the pre-2015 regulatory framework references both the “continuous surface connection” test and the “significant nexus” test. Sackett disapproves of the “significant nexus” test, so it is likely that the guidance concerning the pre-2015 framework overstates jurisdiction regarding adjacent wetlands and streams that are not continuously present. Currently, the EPA and Army Corps of Engineers are reviewing the Court’s decision and have stated that they intend to interpret “waters of the United States” consistent with the decision in Sackett.

Please feel free to contact the Authors of this Alert or your regular AALRR counsel with any questions.

Special thanks to Kevin Harris, AALRR Summer Law Clerk, for his extensive work on this alert.