On May 25, 2023, the Supreme Court issued its decision in Sackett v. EPA, ruling that federal jurisdiction over wetlands under the Clean Water Act (CWA or the Act), which prohibits discharging pollutants into “the waters of the United States” (WOTUS), extends to only those wetlands with a continuous surface connection to WOTUS. The Sackett decision effectively reaffirms the primacy of the “relatively permanent standard” for determining CWA jurisdiction over adjacent wetlands as announced by Justice Scalia in his majority opinion in Rapanos v. EPA and abrogates the “significant nexus standard” from Justice Kennedy’s Rapanos plurality opinion; these Rapanos standards were explained in a prior SPR Blog post. The Supreme Court’s new test for determining CWA jurisdiction over wetlands significantly curtails the EPA and Army Corps’ ability to regulate wetlands nationwide, potentially leaving a vast number of wetlands throughout the country without protections for now.

The Supreme Court decision is the culmination of the petitioners Michael and Chantell Sackett’s years-long litigation regarding a property near Priest Lake, Idaho, on which they sought to build a home. Shortly after the Sacketts began to backfill the property’s wetlands in preparation for construction, the EPA alerted them that those wetlands were federally jurisdictional and that their backfilling activities violated the CWA’s prohibition against unauthorized discharges into WOTUS. The agency ordered the couple to restore the site and threatened significant daily penalties if they failed to comply. The Sacketts subsequently sued the agency to dispute their property’s classification as WOTUS. The district court granted summary judgment to EPA, which the Ninth Circuit affirmed, endorsing EPA’s methodology of aggregating the Sacketts’ lot with a neighboring, large wetland complex to establish a “significant nexus” to Priest Lake, which is an intrastate but navigable body of water. The Supreme Court granted certiorari and reversed the Ninth Circuit’s decision upholding the agencies’ assertion of CWA jurisdiction over the Sacketts’ property.

Justice Alito authored the majority opinion of the Court, joined by four other Justices, and drew heavily on Justice Scalia’s plurality opinion in Rapanos. The Sackett majority set forth a new two-part test for determining CWA jurisdiction over adjacent wetlands:

1. The party asserting CWA jurisdiction over wetlands (e., EPA or the Army Corps) must demonstrate that those wetlands constitute WOTUS; meaning, the wetlands must be a “relatively permanent body of water connected to traditional interstate navigable waters.” Moreover, the putative adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA” such that there is “no clear demarcation between ‘waters’ and wetlands.”
2. The party asserting jurisdiction must then demonstrate that “the wetland has a continuous surface connection with [WOTUS], making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” The majority essentially reinterpreted the word “adjacent” in “adjacent wetlands” to mean “adjoining” – that is, to qualify as “adjacent,” the wetlands must be directly abutting or contiguous with WOTUS. The agencies’ prior, more permissive regulatory definition of “adjacent” would have been satisfied if the wetlands were either directly abutting or contiguous to WOTUS or if the wetlands were separated from WOTUS by a natural or artificial barrier. The prior regulatory definition considered “adjoining wetlands” to be a subset of “adjacent wetlands,” but the Sackett majority held that only “adjoining wetlands” are “adjacent wetlands.”

The majority cited key concerns about federalism and due process as justification for its sharp departure from the previously long-standing jurisdictional test. The Court emphasized that the regulation of land and water use lies at the core of traditional state authority and insisted that Congress must enact “exceedingly clear language” if it intends to significantly alter the balance between federal and state power in the context of private property rights. Additionally, the majority raised concerns about the severity of criminal and civil penalties under the Act and their ramifications for due process, noting that the previous multi-factor, case-specific test left property owners without a clear understanding of when they would face such penalties.

Importantly, all nine of the Justices, including the four who did not join the majority opinion, agreed to abrogate the “significant nexus standard.” However, the three concurrences expressed differing views on the precise bounds of CWA jurisdiction.

Justice Kavanaugh’s primary concurrence took issue with the majority’s narrow interpretation of the term “adjacent” to mean “adjoining.” He contended that the Court’s new interpretation presents an impermissible departure from the statutory text, longstanding agency practice, and the Court’s own precedent. Justice Kavanaugh would have upheld the agencies’ regulatory definition of “adjacent,” under which a wetland would qualify as “adjacent” to WOTUS if the wetland is adjoining (i.e., contiguous to or directly bordering) a covered water or if the wetland is “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kavanaugh noted that Congress used the narrower term of “adjoining” in several other provisions of the Act, which indicates that Congress understood the difference between “adjacent” and “adjoining” such that the legislature would have elected to use the term “adjoining wetlands” if it originally intended the Sackett majority’s narrow interpretation of “adjacent.” He warned that the Court should not depart from Congress’ specific choice of words.

Justice Kavanaugh also invoked several policy concerns with the majority’s new jurisdictional test. He expressed concern that the majority’s new test will significantly decrease the number of wetlands that fall under the umbrella of CWA jurisdiction, potentially raising grave consequences for the protection of the Nation’s freshwater resources. Moreover, Justice Kavanaugh alluded to several issues left unresolved by the majority opinion, including questions about exactly how difficult it must be to discern an “indistinguishable” boundary between waters and wetlands and how the test may apply to wetlands that have surface water connections to WOTUS for only part of the year, and predicted that the new test will generate yet more uncertainty for the agencies and regulated community.

Justice Kagan’s concurrence in large part echoed Justice Kavanaugh’s textual arguments, contending that a more expansive definition of “adjacent” is appropriate for determining the Act’s jurisdiction over wetlands. She posited that the majority’s new clear-statement rule substitutes the Court’s environmental policy preferences for Congress’ intent as expressed in the clear statutory language of the CWA.

Justice Thomas also authored a concurrence that may serve as a preview into how the Court will treat issues arising under the CWA more generally. Justice Thomas’ opinion centered around his concerns that the CWA represents an exceedance of Congress’ Commerce Clause power, which is the constitutional authority on which the Act relies. He emphasized the importance of limiting CWA jurisdiction to “navigable” waters, contending that the Act should apply only to waters over which Congress’ traditional authority over channels of commerce extended. Considering that wetlands are often not “navigable in fact,” adopting Thomas’ proposed jurisdictional framework requiring navigability would exclude most wetlands nationwide from federal jurisdiction. Moreover, applying this same logic to the CWA would narrow the category of WOTUS and severely curb the EPA and Army Corps’ ability to regulate water resources under the Act. Only Justice Gorsuch joined in Justice Thomas’ concurrence, so it has no binding weight, but the opinion gestures to the Court’s broader interest in revisiting and potentially limiting the scope of Congress’ Commerce Clause power, as well as to the effects that a narrower interpretation of the Commerce Clause power may have on the CWA and other federal environmental statutes.

As Justice Kavanaugh pointed out in his concurrence, the majority’s new jurisdictional test will leave many landowners with questions about whether their wetlands are subject to CWA jurisdiction. In the face of this uncertainty, parties seeking clarity on the matter may request a jurisdictional determination from the Army Corps. The Army Corps, however, has yet to issue any substantive response or guidance about its CWA jurisdictional approach under the new standard. Additionally, the Army Corp is reportedly not issuing any Approved Jurisdictional Determinations at this time, and the Corps’ view is that it is under no obligation to provide the determinations. EPA also issued a non-substantive press release expressing its disappointment in the Sackett decision but alluded to a future regulatory reinterpretation of WOTUS consistent with the decision. Last, the pending WOTUS regulations proposed by the agencies in January 2023 have already been enjoined in more than half of the United States; it appears likely that the agencies will withdraw and replace the proposed regulations with a new set consistent with the Sackett decision. In conclusion, it may take up to several months before the final contours of Sackett’s new jurisdictional standard become clear.

Meanwhile, as the federal government begins to retreat from an expansive wetland protection regulatory regime after Sackett, states and municipalities with the political inclination to do so will begin to fill the regulatory gaps that the decision has created. Indeed, many states have already mounted efforts to expand their jurisdiction over wetlands. For example, New York’s Freshwater Wetlands Act was amended in 2022 to decrease the default size threshold for regulated wetlands from 12.4 acres to 7.4 acres. In light of Sackett, states and municipalities will likely redouble and expedite such efforts. Prudent landowners should not be under the impression that the regulatory void left by Sackett will remain for long.