In Sackett v. EPA, 2023 WL 3632751 (U.S. May 23, 2023), the Supreme Court limited the authority of the United States Environmental Protection Agency (“EPA”) to regulate wetlands by embracing a “continuous surface connection test” to determine if adjacent wetlands are subject to the Clean Water Act (“CWA”) and explicitly rejecting Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 547 U.S. 715, 754 (2006). While the 9-0 decision was unanimous in judgment by holding that the Sacketts’ wetland was not subject to federal jurisdiction, the court was sharply divided as to the test to determine when an adjacent wetland qualifies as a Water of the United States (or “WOTUS”).  A five-justice majority held that the CWA’s jurisdiction includes only adjacent wetlands that are indistinguishable from WOTUS due to a continuous surface connection. Under this framework, for an adjacent wetland to be subject to CWA jurisdiction, the adjacent body of water must constitute a WOTUS, and the adjacent wetland must have a continuous surface connection with the WOTUS such that it is difficult to determine where the body of water ends and the wetland begins.  The majority’s holding casts serious doubt on the continuing viability on the final WOTUS rule that became effective earlier this year and relied in part on the “significant nexus” test that EPA and the United States Army Corps have applied through guidance since the Rapanos decision. See 88 Fed. Reg. 3004 (Jan. 18, 2023).

The May 25, 2023 ruling marks the end of the Sacketts longstanding legal battle with EPA to backfill a wetland on their property to build a home. Throughout the litigation, EPA interpreted WOTUS to include adjacent wetlands to non-navigable tributaries of waters that could affect interstate or foreign commerce if there was a “significant nexus” to a traditional navigable water. A “significant nexus” exists when the wetlands either “alone or in combination with similar situated lands in the region, significantly affect the chemical, physical, and biological integrity of those waters.” After seven years of proceedings, the district court entered summary judgment for EPA. The Ninth Circuit affirmed the district court’s holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the wetland on the Sacketts’ lot satisfied the standard.

Chief Justice Alito, writing for the majority, rejected the significant nexus test, and instead returned to the Rapanos plurality opinion for the appropriate test for wetlands. 2023 WL 3632751 at *3.  After walking through the history of the attempts to define WOTUS both through regulation and Supreme Court cases, Justice Alito began his analysis by citing the Rapanos plurality to assert that CWA’s use of the term “waters” to define “navigable waters” meant that scope of CWA jurisdiction encompassed “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers and lakes.’” Id. at *10.   Next, after almost begrudgingly conceding that “waters” could include some wetlands, Justice Alito turned to § 1344(g)(1) of the CWA, which authorized the states to apply to EPA for permission to administer programs to issue permits for the discharge of dredged fill material into “navigable waters” (i.e., WOTUS)  except for traditional navigable waters and wetlands adjacent thereto.  According to Justice Alito, this construct necessarily means that an “adjacent wetland” must qualify as a WOTUS on its own by being “indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Id. at *13.  Justice Alito then referred back to the plurality opinion in Rapanos to further explain that a wetland is indistinguishable from a such a water when “the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id. at *14.  Notably, Justice Alito buttressed his opinion by referencing a recent theme in Supreme Court environmental jurisprudence—expansive federal reach that could have significant impacts requires explicit statutory language.  While the majority opinion does not explicitly reference the “major questions doctrine” announced in West Virginia v. EPA, 142 S.Ct. 2587, 2595 (2022), its precepts clearly underlie the majority opinion in Sackett.

As noted previously, while all the Justices concurred in the judgment that the Sackett’s wetland should not be considered a WOTUS, a number of the Justices took issue with Justice Alito’s reasoning, which resulted in the issuance of three concurring opinions. First, Justice Thomas issued an opinion, joined by Justice Gorsuch, which argued primarily that Justice Alito’s reasoning did not sufficiently focus on the “navigable” aspect of “navigable waters” and that the WOTUS saga was reflective of the historic inappropriate application of the Commerce Clause to expand the reach of federal environmental law.  On the other end of the spectrum, the concurring opinions of Justices Kavanaugh and Kagan (joined by Justices Sotomayor and Jackson) asserted that the majority’s continuous surface connection test went too far and inappropriately equated the definition of adjacent with adjoining. Moreover, Justice Kagan’s opinion argued that the majority’s opinion is another instance of the Supreme Court using the “major questions doctrine” to rewrite Congress’ plain instructions that vest EPA and other executive agencies, not the Supreme Court, with the ability to decide how to protect certain environmental resources.  

The Sackett decision could render long-regulated wetlands beyond the scope of EPA’s authority, and likely jeopardizes a significant part of the EPA and the Department of Army’s recently promulgated rule that attempted to clarify the definition of WOTUS. That rule is currently subject to multiple court challenges that will bear watching as the effect of the Sackett decision ripples across the legal landscape.

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