The federal government's authority to regulate wetlands has been the subject offrequent litigation. In Sackett v. Environmental Protection Agency, 598 U.S. ____ (2023), the U.S. Supreme Court clarified the reach of the Clean Water Act (CWA), specifically the meaning of the phrase "the waters of the United States." Under the Court's new test, the CWA extends to only wetlands that are "as a practical matter indistinguishable from waters of the United States."
The Supreme Court's Clean Water Act decision gives the lower courts and regulated entities greater legal clarity. It specifically benefits developers and other property owners as it sets out a narrower test for determining when wetlands are regulated under the CWA.
TheSackettcase represents the latest development in a long-standing legal battle over what constitutes "waters of the United States" or WOTUS. As discussed in prior articles, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to "navigable waters"without first obtaining a permit.The CWA defines the term "navigable waters" as "waters of the United States, including the territorial seas."
The Supreme Court had last addressed the appropriate scope of "waters of the United States" in Rapanosv. United States, 547 U.S. 715 (2006). While the Court held that the CWA does not regulate all wetlands, the divided Court could not agree on the proper standard. A plurality opinion authored by Justice Antonin Scalia and joined by three other justices argued that only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated. Meanwhile, Justice Anthony Kennedy's concurring opinion concluded that the appropriate test for the scope of jurisdictional waters is whether a water or wetland possesses a "'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made."
In the wake of the Supreme Court's decision in Rapanos, the U.S. Environmental Protection Agency (EPA) and U.S. Army Core of Engineers, as well as the lower courts, struggled to come up with a workable and durable test for determining the jurisdictional scope of the CWA. Some favored Justice Scalia's plurality opinion, while others used Justice Kennedy's "significant nexus" test.
The Sackett case involved a vacant lot near Priest Lake, Idaho owned by Michael and Chantell Sackett. The lot has no surface water connection to any body of water. In April 2007, the Sacketts began building a family home. Later that year, the EPA sent them an administrative compliance order determining that their home construction violated the CWA because their lot contains wetlands that qualify as regulated "navigable waters."
The Sacketts asked the EPA for a hearing, but that request was denied. They then sued in the United States District Court for the District of Idaho and contended that the EPA's issuance of the compliance order was "arbitrary [and] capricious" under the federal Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and that it deprived them of "life, liberty, or property, without due process of law," in violation of the Fifth Amendment. But the case was dismissed on procedural grounds, and the United States Court of Appeals for the Ninth Circuit affirmed. The Supreme Court granted certiorari and in 2012 unanimously ruled that the Sacketts could immediately litigate their challenge to the EPA's order in federal court. In the proceedings that followed, the Ninth Circuit Court of Appeals employed Justice Kennedy's "significant nexus" test to uphold EPA's authority over the Sacketts' property. The Sacketts again appealed to the Supreme Court.
This time, the Supreme Court found that the wetlands on the Sacketts' property are not covered by the CWA. While all of the justices agreed with the result, four justices strongly disagreed with the rationale.
The majority adopted the test advanced by a plurality in Rapanos, under which the CWA's use of "waters" refers only to "geographic[al] features that are described in ordinary parlance as 'streams, oceans, rivers, and lakes'" and to adjacent wetlands that are "indistinguishable" from those bodies of water due to a continuous surface connection.
As Justice Samuel Alito explained:
In sum, we hold that the CWA extends to only 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.
In reaching its decision, the majority rejected the "significant nexus" rule proposed by Justice Anthony Kennedy in Rapanos and relied upon by the EPA in the Sackett's case.
The majority also emphasized that a narrower WOTUS definition helps ensure that landowners don't face significant penalties for inadvertent violations. "And because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of 'the waters of the United States' means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties."
In a concurring opinion joined by Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, Justice Brett Kavanaugh argued against the test adopted by the majority. According to Justice Kavanaugh, "[b]y narrowing the Act's coverage of wetlands to only adjoining wetlands, the 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 throughout the United States."Under the test advanced by Justice Kavanaugh, the CWA would apply to wetlands that are adjacent to a larger body of water or separated from such a body of water by a man-made or natural barrier.
The Supreme Court's decision established a new and less onerous standard for property owners to use when determining whether the CWA applies to them. Now that the Supreme Court has spoken, federal regulators are bound by its WOTUS definition.
In the wake of the Supreme Court Clean Water Act decision, the EPA and the U.S. Army Corps of Engineers issued a final rule that amends the "Revised Definition of 'Waters of the United States'" to conform key aspects of the regulatory text to the Sackett decision. As the EPA acknowledged, while EPA's and Army's 2023 rule defining "waters of the United States" was not directly before the Supreme Court, the decision in Sackett made clear that certain aspects of the 2023 rule are invalid.
Of particular importance, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the "additional waters" category.
The Supreme Court will revisit the CWA during its October 2024 term. On October 16, 2024, the justices will hear oral arguments in City and County of San Francisco v. Environmental Protection Agency, which involves a permit issued to San Francisco for its discharges of wastewater into the Pacific Ocean. The specific question the Court agreed to consider is "[w]hether theClean Water Actallows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System (NPDES) permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform."
Complying with Supreme Court Clean Water Act decisions and resulting EPA regulations can be challenging, particularly given the ever-evolving legal landscape. Scarinci Hollenbeck's Environmental Law Group works with clients to determine their specific compliance obligations under the CWA and EPA regulations, develop CWA compliance programs, and secure permits, licenses, certifications, and waivers under the NPDES program.
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