U.S. Supreme Court Restricts Federal Jurisdiction over Wetlands

On May 25, 2023, the U.S. Supreme Court significantly narrowed the definition of “waters of the United States.” Sackett v. EPA, No. 21-454 (2023). This case marks a decided victory for the Sacketts, an Idaho couple who wished to build a house on property the EPA found to contain federal wetlands. Notably, all nine Justices agreed that the agencies had gone too far in finding that the Sacketts’ property was subject to Clean Water Act (CWA) jurisdiction. In a 5-4 opinion authored by Justice Alito, the Court invalidated the controversial “significant nexus” test and declared that adjacent wetlands must have a “continuous surface connection” with “traditional interstate navigable waters” to be “waters of the United States.” This landmark case brings clarity to the contentious, decades-old question of which wetlands are subject to CWA permitting requirements.

Background

Michael and Chantell Sackett began their quest to build a home in 2004 when they purchased a small lot near Priest Lake in Idaho. As they began backfilling the property with dirt and rocks to prepare for the construction, the EPA informed them that their actions violated the CWA because their property contained protected wetlands. The EPA directed the Sacketts to restore the site and threatened them with penalties of more than $40,000 per day. Consistent with agency guidance, the EPA made its wetlands determination after finding that the Sacketts’ property was adjacent to an unnamed tributary on the other side of a 30-foot road. That tributary fed into a non-navigable creek, which, in turn, fed into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. The EPA then declared that the Sacketts’ wetlands were “similarly situated” to the Kalispell Bay Fen, a large nearby wetland complex and that the properties together “significantly affected the ecology of Priest Lake.” Based upon this complex analysis, the agency ruled that the Sacketts had illegally dumped soil and gravel into “waters of the United States.”  

Procedural History

The Sacketts filed suit against the EPA under the Administrative Procedure Act, alleging that the agency lacked jurisdiction over them because any wetlands on their property were not “waters of the United States.” Only “waters of the United States” can be regulated by the CWA. The lower courts first dismissed the Sacketts’ case on subject matter jurisdictional grounds, but in 2012, the U.S. Supreme Court ruled that the Sacketts could bring their challenge to the agency’s wetlands determination. Seven years after the Sacketts’ initial Supreme Court victory, the District Court entered summary judgment on the merits in favor of the EPA, and the Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a “significant nexus” to traditional navigable waters and that the Sacketts’ lot satisfied that standard.

Supreme Court

In its May 25, 2023, decision, the U.S. Supreme Court reversed the Ninth Circuit, ruling that the Sacketts’ property was not subject to CWA jurisdiction. All nine Justices agreed that the Sacketts should prevail. The more controversial issue was what test should apply for determining whether wetlands were covered by the CWA. The majority opinion, authored by Justice Alito and joined by Justices Barrett, Gorsuch, Thomas, and Roberts—created a new jurisdictional test. Justices Kavanaugh, Jackson, Kagan, and Sotomayor agreed with the result, but disapproved of the test.

Alito Majority Opinion

Justice Alito began his opinion by recognizing the success of the CWA in transforming many “severely polluted” rivers, lakes, and streams into bodies of water that are safe for the use and enjoyment of the people of this country. He explained, however, that despite prior attempts by the Court to clarify the geographical reach of the CWA, problems persist. Alito thus expressed that the Court was in this case attempting to identify with “greater clarity” what the Act means by “waters of the United States.”

Alito warned that the CWA is a “potent weapon” that can have “crushing consequences” for those with even “inadvertent violations.” He explained that property owners who negligently discharge “pollutants” into covered waters may face severe criminal penalties, including imprisonment. Civil penalties can exceed $60,000 in fines per day for each violation. Alito noted that the permitting process and associated expense can be “arduous, expensive, and long.” And there’s no guarantee of success. The Army Corps of Engineers controls permits for the discharge of dredged or fill material into covered waters, and the EPA enforces violations after the fact. The Corps has discretion to grant or deny permits based upon a list of factors and considers “in general, the needs and welfare of the people.”

Statutory Language

Alito summarized the specific statutory language at issue.

The CWA prohibits the discharge of pollutants into “navigable waters,” which it defines as “the waters of the United States, including the territorial seas.” 33 U. S. C. §§1311(a), 1362(7), (12)(A) (2018 ed.).  

Pre-2015 Cases and Regulations

Alito next reviewed historic wetlands cases, explaining that in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), the Court deferred to the discretion of the Corps, reasoning that “the transition from water to solid ground is not necessarily or even typically an abrupt one.” In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), the Court rejected the migratory bird rule, holding that the CWA does not “extend to ponds that are not adjacent to open water.” Alito explained that following SWANCC, the agencies encouraged local field agents to make decisions on a case-by-case basis, resulting in a system of “vague” rules that depended on “locally developed practices.” Lower courts continued to uphold the agencies’ expansive reach. By the time Rapanos v. United States, 547 U.S. 715 (2006) came before the Court, Alito noted that the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . .through which rainwater or drainage may occasionally or intermittently flow.” Id. At 722.

In Rapanos, the lower court held that the CWA extended to wetlands near ditches and drains that eventually emptied into navigable waters at least 11 miles away. The Supreme Court vacated the lower court’s ruling, but there was no majority opinion. Four Justices concluded that the CWA’s coverage did not extend beyond certain relatively permanent bodies of water connected to traditional interstate navigable waters and wetlands with such a close physical connection to those waters that they were “as a practical matter indistinguishable from waters of the United States.” Justice Scalia wrote in his plurality opinion that this occurs when wetlands have “a continuous surface connection” to bodies that are “waters of the United States” in their own right. Four Justices would have upheld the agencies’ determination of jurisdiction, and Justice Kennedy wrote in his concurrence that jurisdiction under the CWA requires a “significant nexus” between wetlands and navigable waters and that such a nexus exists where “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of those waters.

Alito explained that in the decade following Rapanos, the agencies’ guidance called for more fact-intensive individualized determinations, asserting jurisdiction over wetlands “adjacent to non-navigable tributaries” based on “fact-specific determinations” regarding the presence of a “significant nexus.” These determinations were made after considering a long list of hydrological and ecological factors.

Regulations in 2015 and Beyond

Recognizing the uncertainty associated with the pre-2015 rules, Presidents Obama, Trump, and Biden each finalized a rule defining “waters of the United States.” The 2015 rule, Alito noted, would have subjected “the vast majority of the nation’s water features” to a case-by-case jurisdictional analysis using the “significant nexus” test. After lengthy litigation and a change in administrations, this rule was repealed and replaced in 2020 with a rule that limited CWA jurisdiction to traditional navigable waters and their tributaries, lakes, and “adjacent” wetlands. The 2020 rule narrowed the definition of “adjacent,” limiting it to wetlands that “abut” covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. At the end of 2022, the Biden administration replaced the 2020 rule with one that became effective in 2023. This rule again broadened CWA jurisdiction to include “intrastate lakes and ponds, streams, or wetlands” that either have a continuous surface connection to categorically included waters or have a “significant nexus” to interstate or traditional navigable waters. The rule states that a significant nexus requires consideration of a list of open-ended factors. Alito stated that by the EPA’s own admission, “almost all waters and wetlands” are potentially susceptible to regulation under the significant nexus test. This, Alito urged, puts property owners in a “precarious position” because they do not know whether their property may contain waters of the United States. “Even if a property appears dry, application of the guidance in a complicated manual ultimately decides whether it contains wetlands,” he stated.

Justice Alito continued by explaining that the CWA can criminalize “mundane activities like moving dirt,” meaning that a “staggering array of landowners are at risk of criminal prosecution or onerous civil penalties.” Finally, Alito broke down the options of landowners seeking to develop their property:

• Ask the Corps for a jurisdictional determination that it has no obligation to provide.
• If the Corps does provide the determination, the landowners may need an expensive expert to support their position.
• The Corps finds jurisdiction approximately 75% of the time.
• Landowners who build in the face of a determination face possible criminal or civil penalties.
• The jurisdictional determination can be challenged in court, but only after the delay and
  expense of exhausting administrative appeals.
• Once in court, landowners face an uphill battle under the deferential standards of review agencies enjoy.

Alito explained that the other alternative is to seek a permit from the Corps, but that process can “take years and cost an exorbitant amount of money. Many landowners faced with this unappetizing menu of options would simply choose to build nothing.”

Interpreting the Statute

Alito then turned to interpreting the statutory language to determine the correct extent of the CWA’s reach. He noted that the phrase “waters of the United States,” which was not a well-known term of art when the statute was written has led to decades of litigation. Alito agreed with the interpretation of the Rapanos plurality, authored by Justice Scalia: the CWA’s use of “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” Alito reasoned that the reading followed from the CWA’s deliberate use of the plural term “waters,” and the fact that the phrase “waters of the United States” was defining “navigable waters.” Alito explained that although the Court has recognized that the CWA reaches more than “traditional navigable waters,” it has refused to read “navigable” out of the statute. Alito further noted that statutory history and Congress’ use of the term “waters” in other parts of the statute support an interpretation that Congress was primarily focusing on the traditional navigable waters of rivers, lakes, and oceans in drafting the CWA.

Alito recognized that in 1977, Congress amended the statute to allow states to apply for permission to issue permits for dredged or fill material into some bodies of water. These state programs may regulate any “waters of the United States,” except for “traditional navigable waters,” including “wetlands adjacent thereto.” § 1344(g)(1). Based upon this provision, Alito reasoned that at least some wetlands must constitute “waters of the United States.”

Alito then turned to Rapanos to reconcile when wetlands should be so construed. The Rapanos plurality explained that “waters” may fairly be read to include only those wetlands that are “as a practical matter indistinguishable from waters of the United States,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”  The Court continued, “That occurs when wetlands have a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and ‘wetlands.’”

New Test

In reliance on this language, Alito announced the majority holding:

The CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. This requires the party asserting jurisdiction over adjacent wetlands to establish first, that the adjacent body of water constitutes waters of the United States, (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.

Alito went on to reject the EPA’s use of the “significant nexus” test. He explained that Congress must enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property. An overbroad interpretation of the reach of the CWA impinges this authority. “Particularly given the CWA’s express policy to ‘preserve’ the States’ ‘primary’ authority over land and water use, this Court has required a clear statement from Congress when determining the scope of ‘the waters of the United States,’” Alito stated. Alito also argued that the EPA’s interpretation of “waters of the United States” gave rise to serious vagueness concerns, given the criminal penalties associated with violations. “Due process requires Congress to define penal statutes ‘with sufficient definiteness’ that ordinary people can understand what conduct is prohibited’ and ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” Yet, Alito noted that the EPA’s “significant nexus” interpretation remained “hopelessly indeterminate.”

Alito finally recognized that a narrower definition of adjacent wetlands would have ecological consequences; however, the CWA did not define EPA jurisdiction based upon ecological importance and the Court cannot reallocate this authority. Alito noted that States retain the primary authority to combat water pollution and regulate land and water use.

Alito concluded by stating that the Ninth Circuit judgment must be reversed because the wetlands on the Sacketts’ property were distinguishable from any possibly covered waters.

Thomas Concurrence

Justice Thomas (joined by Justice Gorsuch) wrote separately to express concern that although Congress had chosen to tether federal jurisdiction under the CWA to its traditional authority over navigable waters, the agencies had treated the CWA as if it were based upon “New Deal era conceptions of Congress’ commerce power.” He urged that the agencies must respect the limits of their jurisdiction.

Kavanaugh Concurrence

Justices Kavanaugh, Kagan, Sotomayor, and Jackson concurred in the judgment, but disagreed with the majority’s new test for wetlands.

Justice Kavanaugh’s concurrence (joined by Kagan, Sotomayor, and Jackson) expressed agreement with the Court’s ruling that the wetlands on the Sacketts' property were not covered by the CWA and were not subject to permitting requirements. The Justices also agreed with the majority’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered by the CWA.

Justice Kavanaugh, however, expressed his disagreement with the Court’s new test for assessing when wetlands are covered by the CWA. “I would stick to the text,” he urged. Because the Act covers “waters of the United States,” and those waters “include” all wetlands “adjacent” to other covered waters, the Act extends to those “adjacent” wetlands. 33 U. S. C. §§1362(7), 1344(g)(1). Kavanaugh rejected the “continuous surface connection” requirement and advocated for an interpretation that the CWA covered wetlands that were nearby to waters of the United States or were “separated from a covered water only by a manmade dike or barrier, natural river berm, beach dune, or the like.” Kavanaugh warned that by narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered, with “significant repercussions for water quality and flood control throughout the United States.”

Kagan Concurrence

Justice Kagan (joined by Justices Sotomayor and Jackson) wrote separately to express concern that the majority narrowed the scope of the statute Congress drafted. Kagan explained that Congress wrote the CWA to address a problem of “crisis proportions.” “Rivers, lakes, and creeks across the country were unfit for swimming. Drinking water was full of hazardous chemicals. Fish were dying in record numbers.” Kagan argued that the majority ignored the meaning of the word “adjacent” in the statute and appointed the Court as the “national decisionmaker on environmental policy.” “Adjacent” wetlands, Kagan urged, would include neighboring wetlands or wetlands on the other side of a sand dune. Even so, Kagan concurred in the judgment, agreeing that the Sacketts’ property was not subject to CWA jurisdiction.

What’s Ahead?

Although the March 20, 2023, Waters of the United States rule was not before the Court, it does not comply with the new test adopted by the Court. The agencies must revise their guidance. EPA Administrator Michael Regan issued this statement in response to the Court’s ruling:

I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections. The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.

Although the full impact of Sackett remains to be seen, its new guardrails provide property owners with more clarity regarding how they can use their land. It also provides more certainty by lessening the risk that each passing administration overhauls these key rules.

We will watch for further developments.