The U.S. Supreme Court decision in Sackett v. EPA, No. 21-454 (May 25, 2023) is a landmark ruling in environmental law interpreting the scope of water bodies covered by the Clean Water Act (CWA) – an issue that has been debated by courts, presidential administrations, and federal agencies for decades. The Court’s ruling holds that, with respect to wetlands, the CWA’s authority over “waters of the United States” extends only to those wetlands that are “as a practical matter indistinguishable from waters of the United States” — which requires a showing that (1) the adjacent body of water is a “relatively permanent body of water connected to traditional interstate navigable waters” and (2) the wetland has “a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.”[1] The Court’s holding aligns with the plurality opinion of the Court in Rapanos v. United States, 547 U.S. 715 (2006), which was issued 17 years ago but was not uniformly applied due to Justice Kennedy’s use of the “significant nexus” test in his concurrence. The Sackett Court’s decision does away with the significant nexus test in favor of a narrow interpretation of “waters of the United States,” which the Court believes will provide more clarity and consistency for landowners in permitting. The decision narrows federal agency permitting authority over projects impacting wetlands but may lead to increased state regulatory authority in permitting and enforcement over non-covered water bodies.
Brief Overview of “Waters of the United States”
The Supreme Court previously considered the scope of “waters of the United States” under the CWA in 2006 in Rapanos. There, the plurality opinion held that the CWA extends jurisdiction “only over relatively permanent, standing or continuously flowing bodies of water” and not over “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”[2] Justice Kennedy’s concurrence disagreed, stating that the Army Corps of Engineers (Corps) must establish a significant nexus between wetlands and adjacent non-navigable tributaries on a case-by-case basis if the wetlands were to be regulated.[3] The EPA and the Corps thereafter issued guidance calling for fact-based individualized determinations as to whether wetlands had a significant nexus to adjacent non-navigable waters. In 2015, under the Obama administration, the EPA and the Corps issued a new rule expanding the major categories of regulated waters while retaining the case-specific significant nexus determination for questionable waters. In 2019, the Trump administration repealed that rule and replaced it with a narrower definition, limiting jurisdiction to traditional navigable waters, their tributaries, lakes, and adjacent wetlands. In 2023, the agencies, under the Biden administration, again revised the definition, returning it to the pre-2015 Rapanos framework.
The Court’s Analysis
While the Sackett Court unanimously held that the EPA did not have jurisdiction over the property of the plaintiffs in the case, the justices’ reasoning differed. The 5-justice majority clearly rejected Justice Kennedy’s significant nexus test as inconsistent with the text and structure of the CWA. Using standard dictionary definitions of the term “waters,” statutory history, and prior Court opinions, the Court determined that the ordinary meaning of “waters” in the CWA seemingly excluded all wetlands. However, it went on to analyze the term “wetlands adjacent thereto” located elsewhere in the statute. The Court concluded that under the text, the adjacent wetlands must be part of the “waters of the United States” in order to be regulated and thus must be indistinguishable from them. In order to be indistinguishable from traditional waters, the wetland must have a continuous surface connection to a traditional water. The Court did, however, acknowledge that the surface connection could suffer temporary interruptions due to phenomena like low tides or dry spells.
In a concurring opinion, Justice Kavanaugh, joined by 3 other justices, took issue with the majority’s requirement that wetlands have a “continuous surface connection” to waters of the United States, stating that the new test narrows the CWA’s coverage of “adjacent” wetlands to that of merely “adjoining” wetlands. He noted that the terms have distinct meaning as evidenced by standard dictionary definitions, the statutory text of the CWA, decades of consistent agency practice, and Court precedents. While “adjoining” means only contiguous, “adjacent” includes not only contiguous wetlands, but also neighboring wetlands that may be separated by a feature such as a dike, barrier, berm, or dune. Kavanaugh cautioned that such narrow CWA coverage could cause “significant repercussions for water quality and flood control throughout the United States.”
Impacts of the Decision
The Sackett decision will surely impact and narrow CWA permitting requirements, and it remains to be seen how the EPA and the Corps will implement this change. In Louisiana, long-regulated wetlands may now be beyond the reach of federal jurisdiction. For instance, as noted by Justice Kavanaugh, the levee system of the Mississippi River now seemingly disrupts CWA coverage of adjacent wetlands located on the other side. In other instances, federal jurisdiction may rely on agency judgment. The Court’s standard that jurisdictional wetlands must be indistinguishable from traditional waters of the United States may prompt agency guidance on how to determine a “continuous surface connection” or where a water body ends and a wetland begins. Indeed, the Court acknowledged that surface connections may be temporarily disrupted, leaving room for factual discernment and judgment calls. Regardless, the number of wetlands now clearly outside of CWA jurisdiction has greatly increased.
In narrowing federal CWA jurisdiction, the Sackett decision necessarily expands state control over non-covered waters, and states will be called upon to play an increased role in the protection of wetlands and water quality. In Louisiana, the Department of Natural Resources’ Office of Coastal Management (OCM) regulates activities that occur in wetlands when they would have a significant impact on coastal resources and coastal waters of the state. Accordingly, OCM will likely take on an increased role in the Louisiana Coastal Zone where the Corps no longer has jurisdiction over certain wetlands. It remains to be seen whether Louisiana will take action to exercise increased authority in noncoastal areas.
While this decision decreases the scope of the CWA, until further guidance is given at the federal and state levels, industries should proceed cautiously and seek agency guidance if a project may impact wetlands.
[1] Sackett v. EPA, No. 21-454, at 22.
[2] Rapanos v. United States, 547 U.S. 715, 739 (2006).
[3] Id. at 782 (Kennedy, J. concurring).
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