The US Supreme Court issued a decision on May 25, 2023 finding that the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) improperly claimed jurisdiction over a wetland on private property. In addition to significantly narrowing the scope of the Clean Water Act’s (CWA’s) jurisdiction, the decision is likely to complicate the litigation surrounding implementation of the Biden administration’s recent “waters of the United States” rule.
Specifically, the Supreme Court held that the CWA’s use of “waters of the United States” refers “only to geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.” [1] The decision adopts the “continuous surface connection” test first articulated in the plurality opinion of Rapanos v. United States, 547 U.S. 715 (2006).
Chantell and Michael Sackett own property located near Priest Lake, Idaho, and in 2007 they began filling the land with dirt and rock in order to build a house. According to EPA, that land contained wetlands subject to regulation under the CWA, and therefore that use of fill was an unlawful discharge of pollutants into navigable waters of the United States without a permit. See 33 U.S.C. §§ 1311, 1344.
Pursuant to its authority under Section 309 of the CWA, EPA issued a compliance order directing the Sacketts to halt construction, restore the land, and provide EPA with access to the site. Failure to comply with the order could carry penalties of more than $40,000 per day of violation.
The Sacketts challenged EPA’s compliance order, arguing that it was a final agency action subject to judicial review under the Administrative Procedure Act (APA) and that it deprived them of property without due process of law in violation of the Fifth Amendment. Lower courts dismissed the claims, holding that judicial review was not available until EPA initiated a case to either force compliance with the order or collect fines.
However, the Supreme Court unanimously held in 2012 that the CWA compliance order was a final agency action with respect to EPA’s determination that the Sacketts’ property contained jurisdictional waters, and that the CWA does not preclude judicial review of EPA’s jurisdictional decisions under the APA. [2] On remand, the district court entered summary judgment for EPA, and the US Court of Appeals for the Ninth Circuit affirmed, holding that CWA-jurisdictional waters include adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ property contained such wetlands. [3]
The Supreme Court granted certiorari in order to decide the appropriate test for determining the scope of CWA jurisdiction with respect to wetlands.
The majority opinion, drafted by Justice Alito, looks to the text of the CWA and concludes that the Rapanos plurality’s continuous surface connection test not only “follows from the CWA’s deliberate use of the plural term ‘waters’” but also “accords with how Congress has employed the term ‘waters’ elsewhere in the CWA and in other laws.” Notably, the majority opinion would no longer consider wetlands separated from waterways by manmade structures such as roads to be jurisdictional waters, instead stating that wetlands separate from navigable waters “cannot be considered part of those waters,” even if they are close together.
The concurring opinion drafted by Justice Kavanaugh agreed with the majority that the Sacketts’ property did not require a federal permit, but found that strictly limiting the CWA’s coverage of wetlands to adjoining wetlands with a continuous surface connection “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
In a similar vein, the concurrence drafted by Justice Kagan again agreed that the Sacketts did not require a federal permit in order to proceed with the construction of their house, but stated that the majority strayed from the text of the CWA by failing to cover “adjacent” wetlands that do not necessarily have a continuous surface connection with navigable waters.
In contrast, the concurring opinion by Justice Thomas stated that the majority did not go far enough, urging that navigability be restored as the “touchstone” of the CWA, with the relevant inquiry being “whether the water is within Congress’ traditional authority over the interstate channels of commerce.”
The ruling adopts the Rapanos continuous surface connection test for determining jurisdictionality of wetlands. The majority’s holding that a wetland separated from a navigable water by a manmade structure is no longer a jurisdictional water of the United States is a more narrow interpretation of the CWA’s jurisdiction than even the Trump administration’s now-repealed “Navigable Waters Protection Rule,” which included wetlands that directly abut other regulated waters or are separated from jurisdictional waters only by natural berms, banks, dunes, or permeable artificial barriers such as dikes, levees, or roads.
Notably, in addition to dramatically reducing the number of wetlands that are subject to the CWA, the ruling is likely to complicate the ongoing litigation that surrounds the Biden administration’s recently promulgated definition of “waters of the United States.” That definition, which took effect on March 20, 2023, has been challenged and is currently stayed in approximately half of the country. The Biden administration’s rule sought to reimplement the pre-2015 framework defining “waters of the United States” and to codify the “significant nexus” test created by Justice Kennedy’s concurrence in Rapanos as well as the “relatively permanent” standard also included in the Rapanos plurality.
The Sackett ruling will likely require revisions to the Biden administration’s “waters of the United States” rule, leaving certain 1986 regulations in place pending promulgation of a revised definition. However, given the scope of the Sackett decision, it is unclear whether even those 1986 regulations will be fully enforceable.
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