On May 25, 2023, the U.S. Supreme Court reversed the Ninth Circuit’s decision in the Sackett v. EPA case in favor of the Environmental Protection Agency (“EPA”) and instead held that the Clean Water Act (“CWA”) only protects wetlands which are indistinguishable from waters of the United States.

In a unanimous decision, the Court rejected the significant nexus test previously used to protect wetlands with an ecological relationship to navigable waters. There was sharp disagreement on what the new rule should be, with four justices disagreeing that wetlands must have a continuous surface connection with waters of the United States to be granted CWA protection.

Nevertheless, the majority’s decision further restricted water bodies that can qualify as “waters of the United States” (“WOTUS”) and thereby receive the legal protections of the CWA.

What Does This Mean for Wetlands?

The Sackett decision provides a very clear standard that substantially restricts the federal government’s ability to regulate wetlands. Specifically, the Court ruled that for wetlands to be granted CWA protection, they must, first, be adjacent to a body of water that qualifies as “waters of the United States” and, second, have a continuous surface connection with those waters as indistinguishable parts. Under this rationale, according to the majority, wetlands that are entirely separate from traditional bodies of water do not fall under CWA jurisdiction. Following the Court’s decision, this means that projects across the country may no longer be subject to federal permitting, leaving the burden of protecting and regulating many wetlands to the states.

What Does This Mean for California?

The treatment of wetlands and waters regulated by the State of California will remain largely the same. The California State Water Resources Control Board, while disappointed in the Sackett decision, emphasized that it only narrows the scope of federal jurisdiction and does not weaken California’s more stringent protections for wetlands.[1] Having anticipated the Court’s decision, the State Water Board, moving forward, will increasingly rely upon California’s own regulatory wetlands protection programs which allow the Board to retain its authority to protect the 2.9 million acres of wetlands remaining in California today.[1]

What Does This Mean for Other Water Features?

The majority opinion is an express adoption of Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715, 742 (2006), which also served as the basis for the Trump Administration’s Navigable Waters Protection Rule.  The Court, shifting from the previous definition of WOTUS that encompassed all navigable waters and their adjacent tributaries and wetlands, limited this term in Sackett to include only those relatively permanent bodies of water forming geographical features ordinarily described as streams, oceans, rivers, and lakes.  While the nature and extent of Sackett’s impact on water bodies beyond wetlands is uncertain, the decision indicates that the Court considers permanency and navigability to be key factors in determining CWA jurisdiction, calling into question whether ephemeral streams and other water bodies that are not relatively permanent remain under federal oversight.  However, the Sackett decision did not provide clear direction to the EPA as to precisely how it must change its WOTUS rule.

What Are the Next Steps?

The EPA and the U.S. Army Corps of Engineers will interpret WOTUS according to the Court’s decision in Sackett. The agencies are currently reviewing the decision to determine their next appropriate steps, but stress the importance of a “common sense and science-based definition” of WOTUS to build upon the transformative progress the CWA has had thus far in preserving the nation’s waters for current and future generations.

[1] State Water Resources Control Board, California Water Boards, State Water Board Statement: U.S. Supreme Court Decision Decreases Federal Wetlands Protection (May 25, 2023).

[1] Id.