On May 25, 2023, the Supreme Court published their opinion in a case styled as Sackett II, which again focused on the definition of “waters of the United States” (WOTUS) and the jurisdictional reach the federal government had over these protected waterways. The case continues the saga of this statutory definition, which our team has been closely following (see our earlier discussions here and here). In short, the Court’s opinion reduces the prior jurisdictional reach of the federal government (EPA and Army Corps) over “waters of the United States” under the Clean Water Act (CWA) and have in the short term significantly impacted the application of the CWA to wetlands.

The specific facts in Sackett II concerned homeowners who had purchased a residential lot near Priest Lake in Idaho to build a home. In doing so, they began to backfill an area of wetland on their property with dirt and rocks. A few months later, they received a compliance order from the EPA notifying them they were in violation of the Clean Water Act “because their property contained protected wetlands.” The EPA demanded they immediately “undertake activities to restore the Site” and indicated that a refusal could result in penalties of over $40,000 per day. The Sacketts sued the EPA, arguing that the wetlands on their property were not “waters of the United States.” During the litigation, the EPA removed their compliance order but the Ninth Circuit held that the removal of the compliance order did not render the challenge moot and that “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The matter was accepted by the Supreme Court to address the question of “What is the proper test for determining whether wetlands are ‘waters of the United States’ and thus subject to the federal Clean Water Act.”

The issue of wetland jurisdiction has been the subject of many decisions since enactment of the CWA more than 50 years ago. All of the justices concurred in the determination that the subject wetland was not within the jurisdiction of the CWA. A substantial disagreement existed in the Court’s 5 to 4 decision as to the proper test to be utilized in the future. The majority held that the Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States—i.e., with a relatively permanent body of water connected to traditional interstate navigable waterways. Justice Kavanaugh authored a concurring opinion joined by three justices that disagreed with the majority opinion’s “continuous surface connection” test because it departed from the statutory test and 45 years of agency practice. The decision for the time being rejects the “significant nexus” test that had been derived from a concurring opinion in the 2006 case of Rapanos.

While many have interpreted the Sackett II decision to significantly reduce the jurisdiction of the EPA under the CWA, the application of this decision to specific properties in the future will still require landowners to relay on guidance from experts. While the narrow majority opinion was forceful in its conclusion that the CWA regarded a continuous connection with waters of the United States for jurisdiction to exist, the factual situation of a future property owner may still be subject to nuances reflected in the concurring opinions of the four minority members of the Court. Further, Sackett II did not directly address the Court’s 6-3 2020 decision in Maui that had held that discharges of pollutants into groundwater by a County waste water reclamation facility that flowed through groundwater for a half mile before reaching navigable waters was subject to the CWA.  It held that the CWA applied to discharges that were the “functional equivalent of a direct discharge” into navigable waters …. Or when the discharge reaches the same result through roughly similar means.” Groundwater certainly does not meet the traditional definitions of navigable interstate waters or permanent body of waters connected to traditional interstate navigable waters. Justice Roberts was part of the majority in Maui as he was in Sackett II. His interpretation of these nuances will be the subject of much future debate.