U.S. Supreme Court Limits Federal Jurisdiction Over Wetlands
In a 5-4 decision issued on May 25, 2023, the U.S. Supreme Court narrowed the applicability of federal Clean Water Act regulatory authority over wetlands that have a relatively permanent connection to other federal waters. The crux of the Court’s holding in Sackett v. EPA is that, in order to be considered waters of the United States (WOTUS), wetlands and other water features must be “indistinguishable” from traditional navigable waters due to a continuous surface connection. The standard established by Sackett marks a departure from the previously utilized “significant nexus test,” wherein water features are considered WOTUS when there is a significant nexus between the water feature and the traditional navigable water.
The Court’s new two-part test for “adjacent wetlands” is: (i) the body of water to which the wetland is connected is a “relatively permanent body of water” that is connected to traditional navigable waters; and (ii) the wetland has a “continuous surface connection with that [connected] water, making it difficult to determine where the ‘water’ ends and the wetland begins.” (Sackett, slip op. at 22.) The decision is expected to materially reduce the applicability of the Clean Water Act to wetlands connected to streams that do not flow for extended periods of a typical year.
We are now in a period of regulatory uncertainty regarding the extent of Clean Water Act jurisdiction until the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) issue guidance regarding changes to the Clean Water Act Section 404 permitting program to conform to the Sackett decision. As we have previously reported, there are several other pending challenges to elements of the 2023 WOTUS rule, and these other cases raise issues that are not addressed in Sackett. Some Corps districts have stopped issuing Approved Jurisdictional Determinations (AJDs) until the agency assesses the full scope and effect of the Sackett decision. (At this point, a complete list of the Corps district offices that have stopped issuing AJDs is still to be determined, however, for an example of the type of statement being issued by district offices in light of Sackett, see this notice from the Corps Sacramento office.)
The Court’s decision will likely not have a material effect on wetland mitigation requirements in California and other states that regulate discharges to wetlands and other waters under state law. (For an overview of states that implement state-level wetlands protections laws and will therefore be somewhat insulated from the effects of the Sackett ruling, see a recent report from the Environmental Law Institute on this topic.) In states with wetland protections under state law, accepting a broader preliminary jurisdictional determination (PJD) that concedes WOTUS jurisdiction (if a PJD is available) may be the best way to proceed with permitting in a manner that avoids long delays, particularly since state law mitigation for waters impacts will be required anyway.
In Sackett, Petitioners Michael and Chantell Sackett backfilled their property near Priest Lake, Idaho, in preparation to build a home. EPA and the Corps informed the Sacketts that this backfilling violated the Clean Water Act because it constituted a discharge of pollutants into WOTUS (the agencies’ position was that the Sacketts’ water-logged property amounted to a wetland adjacent to Priest Lake because the property was near a ditch, which fed into a creek, which fed into the lake, which is a traditional navigable water). The Sacketts brought suit against the agencies, claiming that their property did not fall within the federal government’s jurisdiction and that the fines levied against them under the Clean Water Act were therefore inappropriate. The district court entered summary judgment for the EPA and the Ninth Circuit Court of Appeals affirmed. The Supreme Court unanimously concluded that the agencies incorrectly designated the Sacketts’ property as WOTUS. However, the justices were far from united in their view of what does constitute WOTUS and why. Much like the seminal Clean Water Act case Rapanos v. United States (547 U.S. 715 (2006)), Sackett engendered several concurring opinions. In addition to Justice Alito’s five-member majority opinion, Justice Thomas wrote a concurrence joined by Justice Gorsuch; Justice Kavanaugh wrote a concurrence joined by Justices Sotomayor, Kagan and Jackson; and Justice Kagan wrote a concurrence joined by Justices Sotomayor and Jackson.
Justice Alito’s majority opinion (joined by Chief Justice Roberts and Justices Thomas, Gorsuch and Coney Barrett) adopts a version of the “continuous surface connection” WOTUS test from the late Justice Scalia’s plurality opinion in Rapanos. To assert jurisdiction over an adjacent wetland under the Clean Water Act, Sackett holds the party must establish “first, 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 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.” The only exception to the continuous surface connection the majority acknowledges in Sackett are temporary interruptions to surface connections due to phenomena like low tides or dry spells.
The concurring opinion authored by Justice Thomas praises the majority opinion for “curb[ing] a serious expansion of federal authority that has simultaneously degraded States’ authority” and the concurring opinions authored by Justice Kavanaugh and Justice Kagan criticize the majority for creating a ‘new’ test, rather than relying on the test established by Congress in the Clean Water Act itself. The Kavanaugh concurrence also criticizes the majority for reading out any distinction between “adjacent” and “adjoining” wetlands. The concurring justices understand the word “adjacent” to include wetlands “next to” a navigable water, even when the water feature is not physically touching the navigable water (e.g. when it is separated by a dam, berm or other natural or man-made structure). By contrast, the majority opinion holds that adjacent wetlands only includes wetlands that are connected to navigable waters, meaning that wetlands next to but without a continuous surface connection to navigable waters are not considered WOTUS.
We expect EPA and the Corps to generally return to the pre-2015 regulatory framework for determining federal jurisdiction under the Clean Water Act until the agencies replace their most recent WOTUS definition (the 2023 WOTUS rule) with a new rule that complies with the holding in Sackett. However, the agencies’ previously issued joint guidance interpreting the pre-2015 framework incorporates both the “continuous surface connection” test and the “significant nexus” test, and Sackett appears to invalidate the latter test. Consequently, in the wake of Sackett, the pre-2015 framework as interpreted by related guidance likely overstates jurisdiction with respect to adjacent wetlands. The agencies’ pre-2015 guidance is likely also over-inclusive with regard to ephemeral and intermittent streams. The holding offered minimal information as to what constitutes a permissible interruption to continuous surface connection (as mentioned above, the majority mentions low tides, which occur every few hours, and dry spells, which could arguably last several years), making these types of water features likely subjects of litigation moving forward (particularly in the West, where water flow is inconsistent and the effects of climate change make predicting flows especially unpredictable).
We have previously reported on changes to Clean Water Act regulations and related litigation and will continue to share updates as they arise.