Trending publication

05.30.2023 | Legal Advisory

The Supreme Court, on May 25, 2023, addressed the longstanding issue of how to determine when a wetland is subject to jurisdiction under the Clean Water Act (the “CWA”). In Sackett v. Environmental Protection Agency, a 5-4 majority of the Court held the CWA extends only to those wetlands “with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” requiring the wetlands to be “indistinguishable from those bodies of waters.” This decision could significantly impact anyone currently regulated by EPA under the CWA for discharging into wetlands or other waterbodies that are not continuously connected to navigable waters.

Background

The petitioners, Michael and Chantell Sackett, purchased property near Priest Lake, Idaho in 2004. After obtaining permits from their county, the Sacketts began to backfill their property with rocks and sand to build a single-family home. A few months later, EPA issued an administrative compliance order stating that the property contained wetlands subject to the CWA and ordering the Sacketts to immediately restore the site, threatening penalties of over $40,000 per day. 

The CWA prohibits discharging pollutants – including rocks and sand – into navigable waters, defined as “the waters of the United States” (“WOTUS”). The outer reaches of what constitutes jurisdictional waters has long been debated. The Supreme Court last addressed the issue in 2006 with its split decision Rapanos v. United States. 

In Rapanos, a four-justice plurality opinion written by Justice Scalia concluded that WOTUS extended only to “relatively permanent, standing or continuously flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. Justice Kennedy disagreed with the plurality’s reasoning. In his concurrence, he wrote that CWA jurisdiction over wetlands requires that they be adjacent to a jurisdictional tributary and that there be a “significant nexus” between the wetlands and traditional navigable waters. This “nexus test” considered whether the wetlands “significantly affect the chemical, physical, and biological integrity” of covered navigable waters. The remaining justices agreed with the significant nexus test, but unlike Justice Kennedy determined that the at-issue wetlands would have been covered by the CWA.

In the Sackett proceedings, the Ninth Circuit applied Justice Kennedy’s “significant nexus” test and concluded the Sacketts’ wetlands were under the CWA’s jurisdiction because they form part of a larger wetlands complex that affected Priest Lake, a navigable water of the United States. 

The Majority Decision

In a 5-4 decision, Justice Alito (joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Coney Barrett) endorsed the Rapanos plurality’s “continuous surface connection” test for determining CWA jurisdiction over wetlands. The majority held that because wetlands “adjacent” to traditional navigable waters are “‘includ[ed]’ within ‘the waters of the United States,’” under the CWA, they must qualify as “‘waters of the United States’ in their own right.”

The majority concluded that adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA,” and that “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

Concurring Opinions

All nine justices agreed that the Sacketts’ wetlands are not covered by the CWA, and none endorsed the “significant nexus test” Justice Kennedy applied in his Rapanos concurrence and which the Ninth Circuit had applied in the proceedings below. But the justices disagreed on the applicable test for considering adjacent wetlands. 

Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued that the majority’s “continuous surface connection” test was too narrow and lacked support in the CWA. In the view of the principal concurrence, the majority conflated “adjacent” and “adjoining” and therefore changed what Congress had intended. The concurrence found that “adjacent wetlands” covered by the CWA “include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Thus, the majority’s opinion “narrowing the Acts coverage of wetlands to only adjoining wetlands . . . will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” Justice Kagan (joined by Justices Sotomayor and Jackson) wrote a companion concurrence emphasizing the difference between “adjacent” and “adjoining” and stating that the majority’s opinion delves into policymaking that constitutionally needs to be done by Congress.

In contrast, Justice Thomas, in a concurrence with Justice Gorsuch, would have limited CWA jurisdiction even further, extending it only to waters that are navigable in the sense that they are “a highway of interstate or foreign commerce” and that the pollution at issue is subject to the CWA only if it “obstruct[s] or otherwise impede[s] navigable capacity or the suitability of the water for interstate commerce.”

Effects

The Sackett decision has several practical implications. First, the number of wetlands under federal jurisdiction is now substantially reduced. According to the majority opinion, the area of the United States covered by wetlands is greater than the combined surface area of California and Texas. It will now be up to states and local jurisdictions to exclusively regulate much of these wetlands. 

Second, according to the majority, the ruling will provide more certainty for property owners, especially when it comes to determining what is and is not adjacent water, and it could make determining jurisdictional boundaries simpler and faster. Justice Kavanaugh, however, doubts this certainty in his concurrence, noting the difficulty in assessing “temporary interruptions” in the continuity between wetlands and navigable waters, including wetlands that are connected for most of the year but dry up in the summer.

As a final point, EPA’s regulation defining WOTUS that went into effect in March 2023 almost certainly needs to be redone. That rule relied in substantial part on the “significant nexus” test in Justice Kennedy’s Rapanos concurrence, which is no longer good law. Since the Sackett decision, congressional and industry critics of EPA’s WOTUS rule have urged the agency to withdraw it completely. Environmentalists, worrying the era of the Court deferring to EPA’s interpretation of statutes may be over, are urging state and local officials to increase their efforts to protect waters.

This advisory was prepared by Matthew Connolly, Valerie Moore, and Matthew Snell in Nutter’s Real Estate Department. The authors were assisted in drafting this advisory by Nutter summer associate Michelle Kenyon. If you would like additional information, please contact any member of our Real Estate Department or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.