Alert
06.13.2023

On May 25, 2023, the United States Supreme Court released its long-anticipated decision in Sackett v. Environmental Protection Agency, which set out to resolve the uncertainty regarding the definition of “Waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). The Court addressed whether the Environmental Protection Agency (the “EPA”) exceeded its authority when EPA determined that ldaho landowners Michael and Chantell Sackett (the “Sacketts”) required a CWA permit to backfill the wetlands on their property. While all nine justices agreed that the EPA overstepped its authority in asserting jurisdiction over the Sacketts’ property, they differed on the proper standard for how to determine when the EPA may assert jurisdiction over an adjacent wetland under the CWA.

Ultimately, the Supreme Court narrowed the scope of the CWA by holding that WOTUS only applies to “streams, rivers, oceans and lakes” and adjacent wetlands that are as a practical matter indistinguishable from waters of the United States. In so doing, the Court ultimately rejected the “significant nexus” test articulated by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006), which offered a broad definition of WOTUS under the CWA by including all wetlands that “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.’”

Opinion:

This matter stems from the EPA’s decision to classify wetlands on the Sacketts’ property, which the Sacketts were backfilling, as WOTUS under the CWA. The wetlands on the property were located adjacent to an unnamed tributary which fed into a creek which fed into a navigable intrastate lake. The EPA asserted that by backfilling the wetlands, the Sacketts were in violation of the CWA, which prohibits discharging pollutants into "the waters of the United States" without a permit. 33 U.S.C. Section 1362(7). In reaching this decision, the EPA applied the “significant nexus” test and concluded that the wetlands met the definition of WOTUS because the Sacketts’ lot, together with a large nearby wetland complex, affected the ecology of the lake.

The Sacketts sued the EPA in federal court and asserted that the agency had exceeded its jurisdiction in applying the “significant nexus” test to the definition of WOTUS. The district court held that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts' wetlands satisfies that standard.  The U.S. Court of Appeals for the Ninth Circuit subsequently affirmed the district court’s decision.

The majority opinion, written by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, essentially adopted the “relatively permanent” test set out by Justice Scalia in Rapanos to determine when wetlands are part of covered waters and concluded that that the “significant nexus” standard is inconsistent with the text and structure of the CWA. In reaching this decision, the court cited to concerns stemming from government overreach in regulating private property and ensuring due process given the CWA’s steep criminal penalties.

The Court held that to assert jurisdiction over an adjacent wetland under the CWA, the EPA must:

  1. Establish that the adjacent body of water constitutes water[s] of the United States (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and
  2. Establish that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.

Impacts of Sackett:

  1. Clarity in Interpretation of the Definition of WOTUS - There has been uncertainty regarding the scope of the definition of WOTUS as it applies to adjacent wetlands. This opinion may bring an end to that uncertainty. The Sackett decision sets forth a clear test for determining which wetlands fall within the CWA’s jurisdiction.
  2. Narrows the Scope of the CWA’s Jurisdiction – The “relatively permanent” test narrows the scope of the definition of WOTUS by declining to extend CWA protections to wetlands that do not have a continuous surface connection with a WOTUS.
  3. 2023 WOTUS Rule Struck Down – The EPA’s January 18, 2023 “Revised Definition of Waters of the United States” rule, which applied both the “significant nexus” and “relatively permanent” standards, is effectively struck down by Sackett. While the rule was not technically before the court, the majority opinion addressed the EPA's arguments and refused to defer to the EPA's interpretation of WOTUS based on "significant nexus."
  4. Agency Deference - The Supreme Court’s refusal to defer to the statutory interpretation of an agency is part of a trend requiring “clear congressional authority” from Congress when determining the scope of agency jurisdiction, as stated in West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022).

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