US Wetlands: No Longer “Waters of the United States”?

Analyzing SCOTUS’ Decision in Sackett v. EPA


On May 25, 2023, the United States Supreme Court issued a decision in Sackett v. EPA, which involved a challenge to the Environmental Protection Agency’s (“EPA”) enforcement of the Clean Water Act of 1972 (“CWA”). The CWA covers “navigable waters,” statutorily defined as the “waters of the United States” (“WOTUS”), as opposed to bodies of water reserved to the states and state regulation. It also includes, within its covered waters, any “wetlands adjacent [to]” those navigable waters; at issue here was this CWA language and how competing interpretations defined wetlands as “adjacent.” In its decision, the Court drastically limited the EPA’s jurisdiction over these wetlands, eschewing the “significant nexus” test utilized by the EPA as excessively broad. In its place, the Court established the much narrower “continuous surface connection” test as the standard to determine whether wetlands are considered adjacent to navigable waters and, thus, considered WOTUS.


Enacted in 1972, the CWA brought numerous US bodies of water under the control and regulation of the EPA. In addition to providing for EPA oversight, the CWA made the Army Corps of Engineers responsible for the issuance of permits that allow for the discharge of fill and dredge materials into covered waters. The 1972 version of the CWA made no mention of wetlands, so it was amended in 1977 to codify the Army Corps’ adopted regulatory standardthat wetlands adjacent to CWA-covered waters were also covered. However, this amendment did not provide clear guidance for what constituted an “adjacent” wetland, so the issue of wetlands covered under the CWA remained broad and somewhat vague.
For nearly a quarter-century after its passage, the CWA’s covered waters were broadened to include increasingly more remote waters until 2001, when the Court ruled that isolated ponds and other remote waters were not covered. In Rapanos v. United States (2006), the issue was brought to the fore again. In a plurality opinion, Justice Scalia argued for a “continuoussurface connection” to determine whether a wetland is “adjacent.” Justice Kennedy concurred in only the judgment, instead proffering a “significant nexus as the standard, and the four dissenting Justices deferred to the Army Corpsinterpretation while stating that Justice Kennedy’s “significant nexus” approach will control in most cases. In the 50 years since the enactment of the CWA, no case law has definitively defined nor repealed the inclusion of “adjacent” wetlands within the CWAcovered waters. During that time, each Presidential administration offered similar versions of the same interpretation: wetlands “adjacent” to navigable waters are WOTUS.
Property owners who violate the CWA can be fined or even held criminally liable, and those looking to deposit fill or dredge materials into wetlands can only do so once they have received a Section 404 Permit from the Army Corps. In 2004, Michael and Chantell Sackett purchased a lot near Priest Lake in Idaho to build a home. The Sacketts backfilled their property with gravel, which led to the EPA issuing a compliance order requiring them to restore their property to its original state, as the EPA classified their property as a protected wetland. The Court unanimously decided against the EPA’s determination, but the issue causing dissension among the Justices was the test used to reach that decision, i.e., the continuous surface connection” test.
The “continuous surface connection” test holds that the CWA “extends only to those wetlands that are ‘as a practical matter indistinguishable from [WOTUS].’” This requires proving that the wetland has a continuous surface connection with the navigable body of water, such that it is difficult to determine where the water ends and the wetland begins. The majority’s adoption of the “continuous surface connection” test broadly means that many wetlands historically classified as WOTUS are no longer considered as such, shrinking the EPA’s jurisdiction considerably.


Practically, this means that property owners like the Sacketts with “wetlands” on their property only fall under CWAcoverage if this body of water shares a continuous surface connection with WOTUS. The CWA allows the EPA and other federal organizations to oversee water quality, regulate flood control, and protect biodiversity in waters across the country, so shrinking the waters covered by the CWA will curtail theseefforts. In his opinion concurring with the judgment but disagreeing with the “continuous surface connection” test, Justice Kavanaugh describes several historically regulatedwetlands which now seemingly fall outside CWA jurisdiction, citing the wetlands of the Mississippi River’s levees and the Chesapeake Bay as prime examples. Both play integral roles in regulating flood control and promoting the biodiversity of theirrespective bodies of water.
However, by limiting the CWA, the Court has shifted power to property owners and the states. Though the Court discusses state regulation replacing federal, many states have limited their agencies from enforcing regulatory standards that surpass the federal government’s. These laws further solidify the unprotected status of certain wetlands and will curtail state and federal-led attempts to regulate these areas. Although major implications of the case have yet to be seen, the wide scope of waters no longer protected by the CWA suggests that changes are coming for American wetlands.
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