The U.S. Supreme Court has issued its opinion in the landmark Clean Water Act (“CWA”) case of Sackett v. EPA, No. 21-454 (May 25, 2023). This decision delivers a significant change in terms of the reach and jurisdiction of the CWA, and supplies some harsh critiques between the Justices that all agreed in the judgement but were fiercely divided on how to get there.
The question presented to the Court was, seemingly, straightforward: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7).” But, this question has wide-reaching implications. The definition of “waters of the United States” (“WOTUS”) sets the jurisdictional limits of the CWA. Under the CWA, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the Act, so the agencies have been left to try to craft a definition.
The Army Corps and EPA first proposed a WOTUS definition in 1977 and it has faced revisions and legal challenges ever since. The most controversial aspect of the WOTUS definition throughout its history has been the inclusion of wetlands and other non-navigable waters. The WOTUS definition has faced Supreme Court review in three previous cases:
- U.S. v. Riverside Bayview, 474 U.S. 121 (1985)
- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
- Rapanos v. U.S., 547 U.S. 715 (2006)
Which brings us to the Sackett case. Justice Alito authored the majority opinion for the Court, joined by Chief Justice Roberts, and Justices Gorsuch and Barrett. All of the other Justices also concurred in the judgment, but joined in separate concurring opinions. The case involved a residential property owned by the Sacketts located near Priest Lake in Idaho. The property was designated by EPA as a wetland, and when the Sacketts started backfilling their property to begin constructing a house, they received a compliance order from EPA. EPA determined that the Sackett’s wetlands were WOTUS because they were adjacent to a tributary to Priest Lake and they were part of a larger wetland that had a significant effect on Priest Lake.
In evaluating this case, Justice Alito discussed the history of the CWA and the WOTUS definition. Alito acknowledged that the statutory context of the CWA shows that some wetlands qualify as WOTUS. That is because in 1977, Congress amended the CWA to add §1344(g)(1), which includes language that refers to navigable waters “including wetlands adjacent thereto”. Thus, Alito saw the Court’s task as “harmoniz[ing] the reference to wetlands in §1344(g)(1) with ‘the waters of the United States’”. (Slip Op. at 19.) Ultimately, the Court held that:
the CWA extends only to 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.
Slip Op. at 22 (internal citations omitted).
Interestingly, Justices Kagan, Sotomayor, Kavanaugh and Jackson all concurred in the judgment—they all agreed the ruling of the lower court should be reversed—but they strongly disagreed with the majority’s adoption of the “continuous surface connection” test for wetlands. Thus, the concurring opinions written by Justice Kagan and Justice Kavanaugh read like dissents and sharply criticized Justice Alito’s majority opinion. Both Justices argued that the majority’s test disregards the ordinary meaning of “adjacent” and narrows the CWA to exclude wetlands the Act has covered since 1977. That is because “adjacent” does not mean adjoining or contiguous; it can mean nearby. Thus, these concurring Justices would have adopted a test, consistent with agency practice, that “a wetland is “adjacent” to a covered water (i) if the wetland is adjoining—that is, contiguous to or bordering—a covered water—or (ii) 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.” (Kavanaugh Concurring Op. at 4.)
Justice Thomas also concurred with the majority opinion, but wrote a separate opinion, with which Justice Gorsuch joined. Justice Thomas’s concurrence did not address the textual arguments that were the focus of the other opinions; instead he provided a detailed history of water regulation and stated that the CWA jurisdiction should be limited to truly navigable waters. He also included a section discussing his views on the court’s Commerce Clause jurisprudence and his belief that many environmental laws are not sufficiently related to interstate commerce to pass Constitutional muster.
While there was strong debate between the Justices, the definition of WOTUS appears to be settled at long last. A wetland will NOT be considered a WOTUS (and therefore not under the jurisdiction of the CWA) unless it has a continuous surface connection with a traditional navigable water. As we previously reported, EPA and the Army Corps recently updated the WOTUS rule in early 2023. That definition is not consistent with the Sackett ruling, and will likely be further revised by the agencies. EPA has not indicated yet how or when it will be revising the rule, or whether it will have enforcement guidance or leniency in the interim. We will be monitoring those developments and provide the latest updates on the Corporate Environmental Lawyer Blog.