On May 25, 2023, the U.S. Supreme Court issued its long-anticipated decision in Sackett v. EPA, a case involving homeowners who filled private residential property in order to build a home.^[1]

All nine justices agreed the definition of waters of the United States (“WOTUS”) found in the Clean Water Act (“CWA”)^[2] did not extend to the Sackett’s property. However, that is where agreement between the nine Justices ended, as there was a majority opinion and three concurring opinions.

Justice Alito, writing for the majority, found that the CWA has a narrow reach that only includes “wetlands that are as a practical matter indistinguishable from waters of the United States.” Further, the majority opinion established a new two-part test that is narrower than the “substantial nexus” test previously used by U.S. EPA (“EPA”) and the Army Corps of Engineers (“Corps”). Per Sackett, to be a protected wetland, it must be established that (1) there is an adjacent body of water that constitutes traditional WOTUS (a relatively permanent body of water connected to traditional interstate navigable waters such as a stream, river or lake), and (2) the wetland has to have a “continuous surface connection” making it difficult to determine where the water ends and the wetland begins. This new interpretation should free up many wetland areas for development that were previously protected and would have required agency permits and mitigation.^[3]

If this case sounds familiar, it is because it revisits the same issues raised in Rapanos v. United States, a decision where the Court also attempted to define the limits of the CWA.^[4] In Rapanos, Justice Scalia wrote in the plurality opinion that the term “navigable waters” includes something more than traditional navigable waters but was not “limitless.” Justice Scalia instead limited the reach of the CWA to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection to WOTUS such that they are indistinguishable. The Sackett decision mirrors Rapanos and Justice Alito frequently cites Justice Scalia’s opinion. Unlike Rapanos, where Justices Breyer and Stevens both filed dissenting opinions, there was no dissenting opinion in Sackett.

It remains to be seen how the agencies will implement Sackett in their permit issuance and rule-making. However, on the day of the decision, EPA Administrator, Michael Regan, stated he was “disappointed” by the decision, which “erodes longstanding clean water protections.” Administrator Regan also stated the agency would “carefully review the Supreme Court decision and consider next steps.”^[5] The White House issued similar statements. The Corps also posted a short statement that “the agencies will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision … and continue to review the decision to determine next steps.”^[6]

The Sackett decision is unquestionably important for property owners who may be unaware that their property could be considered a wetland although it is remote from navigable waters. The decision has implications for anyone seeking to develop property that, in the past, would have required time-consuming and costly permitting and wetland mitigation. Developers who previously had to pay consultants to prepare wetland delineations or seek a favorable jurisdictional determination, can now look to the Sackett decision when evaluating whether they can legally fill a wetland for a project. Developers may still need to engage consultants to determine if regulated wetlands could be impacted and would be advised to do so.

Developers and landowners should be mindful that individual states may have separate wetland laws and regulations applicable to their projects. For example, Ohio regulates isolated wetlands by prohibiting the filling of such areas without a state permit.^[7] Filling such wetlands can result in notices of violation and orders from the Ohio EPA to restore the isolated wetland.

It will be interesting to see whether individual states will fill the gap in wetland protection left after the Sackett decision. KMK will continue to monitor these matters.  

[1] See Sackett v. Environmental Protection Agency, No. 21-454, -- U.S. -- (May 25, 2023).

[2] Since 1972, the CWA has prohibited “the discharge of any pollutant[.]” See 33 U.S.C. §§ 1251, 1311(a). The broad reach of the Act challenged by the Sacketts comes from broad definitions of terms such as “pollutant” which includes “any addition of any pollutant to navigable waters” where “navigable” is, in turn, broadly defined to mean “the waters of the United States.” See 33 U.S.C. §§ 1362 (7) and (12) (emphasis added). In the Sackett decision, the Justices focused on language found in section 1344(g)(1) which provides that states can administer their own permits for discharge of dredged or fill material into navigable waters “other than those waters which are presently used … to transport interstate or foreign commerce … including wetlands adjacent thereto[.]” 33 U.S.C. § 1344(g)(1). The Justices disagreed on how to interpret “adjacent” with the majority holding that the wetland has to be “adjoining” to covered waters by having a continuous surface connection.

[3] As to what “continuous” means, Justice Alito did “acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides and dry spells.” Further, Justice Alito noted that landowners could not remove a wetland from federal jurisdiction by illegally constructing a barrier between a wetland and WOTUS.

[4] See Rapanos v. United States, 547 U.S. 715, 126 S. Ct 2208 (2006).

[5] See U.S. EPA, Statement on Supreme Court Decision in Sackett v. EPA, available at: https://www.epa.gov/newsreleases/statement-supreme-court-decision-sackett-v-epa (last accessed June 14, 2023).

[6] See  U.S. Army Corps of Engineers, Supreme Court Ruling in Sackett v. Environmental Protection Agency, available at: https://www.usace.army.mil/Media/Announcements/Article/3409141/26-may-2023-supreme-court-ruling-in-sackett-v-environmental-protection-agency/ (last accessed June 14, 2023).

[7] See Ohio Revised Code § 6111.021(B).