In a decision that has been anticipated for months, the U.S. Supreme Court issued its opinion in Sackett v. United States, essentially rewriting jurisprudence established previously in Rapanos v. United States, 547 U.S. 715 (2006), and doing away with the “significant nexus” test adopted by the Court in that case for determining the jurisdictional reach of the term “waters of the United States” under the federal Clean Water Act (CWA or the Act).
Similar to Rapanos, where a divided Court in a 5-4 ruling found that wetlands, even if not physically connected to traditional navigable waters, are subject to the jurisdiction of the CWA where there is a significant nexus between the wetlands and the traditional navigable waters. The present Court, while agreeing unanimously that the wetlands in question were not “waters of the United States,” was again deeply divided, 5-4, as to the proper legal standard to apply in making the determination. The majority opinion, written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, John Roberts, and Amy Coney Barrett, found that wetlands not connected physically to traditional navigable waters are not subject to the jurisdiction of the CWA. Borrowing heavily from Justice Antonin Scalia’s dissenting opinion in Rapanos, the Court found that to be considered “adjacent” wetlands and subject to the CWA, there must be a continuous surface connection that makes it difficult to determine where the water ends and the wetlands begin. The Court stated that “the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’”
The decision narrows the test for determining whether wetlands are subject to federal jurisdiction under the CWA and as a result reduces the scope of the Act and what waters fall within the jurisdiction of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, and it promises to have a significant impact upon ongoing litigation regarding multiple challenges to federal rules attempting to define “waters of the United States.”
In a concurring opinion written by Justice Brett Kavanaugh and joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, these four justices agreed that the use of the “significant nexus” test from Rapanos for determining whether wetlands are covered under the Act was not proper, but they disagreed with how narrowly the majority would define wetlands subject to the CWA.
Kavanaugh specifically disagreed with the Court’s interpretation of “adjacent” wetlands under the Act and found the majority’s finding that adjacent wetlands necessarily required that the wetlands adjoin traditional navigable waters was inconsistent with the definitions of the terms and the plain language of the Act and, further, inconsistent with the past 45 years of consistent agency practice and the long-standing precedent established by the Court:
“[T]he Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control through the United States.”
Interestingly, in an additional concurring opinion, Thomas and Gorsuch indicated that they would be willing to go much further than the majority opinion in examining the breadth and scope of the CWA and the extent of the authority of Congress under the Commerce Clause of the Constitution to enact legislation that, in their opinion, carries well beyond the traditional commerce power of Congress to regulate interstate commerce based on the clause.