On May 23, 2023, the U.S. Supreme Court finally issued its decision in Sackett v. U.S. Environmental Protection Agency, which significantly rolls back the scope of wetlands the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers may now regulate.[1] Although still being considered by the regulated community, there is no doubt this decision will widen the ability of property owners and developers to claim certain lands as exempt from federal wetland regulations.

In Sackett, a couple purchased vacant property near Priest Lake in the State of Idaho with the intent to build their home.[2] After backfilling their lot with rocks and dirt, EPA claimed the couple’s property was a protected wetland and demanded they restore the property back to its original condition.[3] According to EPA, the property at issue was a wetland because it sat across the road from an “unnamed tributary,” which fed into a non-navigable creek connecting to Priest Lake — a navigable intrastate body of water.[4] EPA further asserted the couple’s property had a “significant nexus” to Priest Lake because it fit into a nearby wetland complex which impacted the lake’s ecology, and therefore concluded it could prohibit the couple’s placement of soil and gravel.[5]

The U.S. Supreme Court unanimously rejected EPA’s classification of the couple’s property as a covered (i.e., regulated) wetland. Justice Alito — writing for the majority — concluded EPA overstepped its authority because the couple’s land is “distinguishable from any possibly covered waters” pursuant to the Clean Water Act (“CWA”).[6] As an initial matter, Justice Alito vindicated previous Supreme Court rulings as correct in defining “waters of the United States.”[7]  In Rapanos v. United States, a plurality of the Supreme Court defined the CWA as covering “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”[8] Justice Alito indicated this definition of “waters of the United States” is logical due, in part, to the word’s ordinary meaning, its agreement with the term “navigable waters” in the text of the CWA, and the legislative history behind the CWA.[9]

Given this definition of “waters of the United States,” Justice Alito proceeded to determine that EPA’s interpretation of “adjacent wetlands” was too broad to be consistent with the CWA.[10] EPA previously categorized these regulated wetlands as wetlands that possessed a “‘significant nexus’ [to] . . . traditional navigable waters . . . .”[11] EPA’s definition of “adjacent wetlands” included wetlands “‘neighboring’ . . . covered waters, even if they are separated from those waters by dry land.”[12] Justice Alito further reasoned, however, that “adjacent wetlands” must be “waters of the United States” for some of the CWA’s statutory provisions to not contradict one another.[13] The ordinary meaning of the term “adjacent” and the plain language of the CWA also led Justice Alito to infer Congress did not intend for the statute to “hide elephants in mouseholes” and cover such a large scope of lands.[14]

Justice Alito and the majority of the Supreme Court ultimately held the CWA only regulates “‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.”[15] To regulate “adjacent wetlands,” federal agencies must now show that: (1) the body of water adjacent to the wetland is a “water of the United States” (such as streams, oceans, rivers, and lakes); and (2) “the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and where the ‘wetland’ begins.”[16] The Supreme Court ultimately ruled that, because the couple’s property was distinguishable from Priest Lake, EPA could not regulate their property as a federal wetland.[17]

Sackett narrows the scope of properties that may be deemed protected wetlands under the CWA and, thereby, subjected to federal requirements. Properties with wetlands separate from larger bodies of water may no longer be susceptible to federal regulation.[18] As such, this decision may be viewed as a victory for some property owners and developers who were punished for, or are prevented from, disturbing land areas previously regulated by the federal government.

[1] See generally 598 U.S. ____ (2023).

[2] Id. at 4 (2023).

[3] See id. at 5.

[4] See id. at 5–6.

[5] See id.

[6] Id. at 27–28.

[7] See id. at 14.

[8] See id. (quoting Rapanos v. United States, 547 U.S. 715, 739 (2006) (plurality opinion)).

[9] See Sackett, 598 U.S. at 14–18.

[10] See id. at 22.

[11] See 88 Fed. Reg. 3004 (Jan. 18, 2023); see also Rapanos, 547 U.S. at 759 (Kennedy, J., concurring).

[12] See Sackett, 598 U.S. at 22 (citing 88 Fed. Reg. 3004, 3144 (Jan. 18, 2023)) (citations omitted).

[13] See Sackett, 598 U.S. at 19.

[14] See id. at 19–21 (quoting Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)) (citations omitted).

[15] Sackett, 598 U.S. at 27 (quoting Rapanos, 547 U.S. at 742, 755 (plurality opinion)).

[16] See id. at 22.

[17] See Sackett, 598 U.S. at 4–6, *27–28.

[18] See id. at 22.