In a closely watched environmental Clean Water Act (CWA) case, the US Supreme Court adopted a far narrower construction of CWA’s definition of “waters of the United States,” functionally shifting significant authority over water-related issues from the federal government to the states.
The Sackett v. Environmental Protection Agency (EPA) majority opinion, authored by Justice Alito, defines “waters of the United States” subject to regulation under CWA as limited to “streams, oceans, rivers, and lakes” and wetlands that share a “continuous surface connection” with those water bodies.
The Sackett dispute — on its second trip to the Supreme Court — is rooted in a small plot of land near a lake in Idaho. After purchasing the land, a husband and wife began backfilling low spots in the land with dirt intending to build a house. EPA informed the couple that the backfilling was a violation of the CWA because their property was on wetlands adjacent to “waters of the United States,” namely a drainage ditch on the property that fed into a creek that ultimately led to the lake. The Sacketts challenged EPA’s determination in court, and the litigation stretched for nearly two decades before reaching the Supreme Court.
CWA authorizes federal agencies to regulate discharges into the “waters of the United States” (WOTUS). While an exact definition of WOTUS has been elusive, the federal government and courts have generally accepted that it includes interstate or traditionally navigable waters and their tributaries, as well as wetlands “adjacent” to those waters.
The Supreme Court previously addressed, or attempted to address, which wetlands fell within this definition in its 2006 split decision in Rapanos v. United States. Writing for a plurality, then-Justice Scalia defined “waters of the United States” narrowly using the ordinary public meaning of the term and held that wetlands without a physical connection to navigable surface waters were beyond federal jurisdiction.
Then-Justice Kennedy offered a different — and more expansive — standard in a concurrence in Rapanos. Under the “significant nexus” test, federal agencies could regulate wetlands that were ecologically, rather than physically, connected to navigable waters.
In the years since, EPA regulations have alternated between these two tests with successive presidential administrations adopting different regulatory approaches. Important for this case, both the currently applicable and proposed future EPA rules incorporate the “significant nexus” test.
Citing to Scalia’s concurrence in Rapanos, the majority in Sackett looked to the text of the CWA to figure out the statute’s “geographical reach.” The majority writes that the plural “waters” is commonly used to refer to “geographical features” ordinarily described as “streams, oceans, rivers, and lakes.” Because the statute refers to waters “including” adjacent wetlands, only wetlands that are “indistinguishably” part of a stream, ocean, river, or lake are covered. So, “adjacent wetlands” under the CWA are those wetlands that share a “continuous surface connection” with those water bodies.
The majority also noted that water issues on private property have traditionally been under state, rather than federal, jurisdiction. With this background, the majority stated that “exceedingly clear” language showing that Congress intended to upset this balance was necessary to support EPA’s regulation, and that current CWA language was insufficient to do so. Additionally, the majority wrote that clear language was required to mitigate vagueness concerns because CWA contains provisions which impose “severe criminal sanctions for even negligent violations.”
Not Quite Unanimous
While the Court unanimously agreed to reject the significant nexus test, there was sharp disagreement on what any new rule should look like. In separate concurrences, Justice Kavanaugh and the three justices nominated by democratic presidents argued the majority’s “continuous surface connection” test improperly narrows the scope of the CWA by excluding wetlands that are near, but not physically connected to, covered water (i.e., wetlands separated from a river by a sand dune or a man-made dike). Justice Kavanaugh argued the majority opinion creates “ambiguity where there is none” by ignoring the plain meaning of the word “adjacent” as well as “45 years of consistent agency practice.” Justice Kagan took the criticism a step further, suggesting the majority placed “a thumb on the scale for property owners.”
Sackett seems to undermine both the current and the proposed EPA WOTUS rules, which both incorporate the “significant nexus” test. As a result, EPA will likely need to issue new rules and many wetlands that were previously regulated may now be outside the agency’s jurisdiction. Absent new legislation, the primary role of protecting many wetlands will fall to the individual states.
We will continue to update as states and federal regulators assess and apply the new standard.