The United States Supreme Court has issued its Opinion in Sackett v. EPA, a case looking at the proper test to determine whether a wetland is jurisdictional under the Clean Water Act (CWA).  To hear my discussion on this case with our favorite law professors, Jesse Richardson and Anthony Schutz, click here.  To read a significantly shorter Q&A interview about the case I did with Progressive Cattle, click here.

Photo by Brad Weaver on Unsplash

Short Summary

For those of you who have no interest in reading such a long description, here is a  short summary.

The Court unanimously agreed the “significant nexus” test is not the proper way to determine whether wetlands constitute a WOTUS.  The Court also unanimously agreed the Sacketts’ property is not a WOTUS.  Thus, the decision from the US Court of Appeals for the Ninth Circuit was reversed.

However, the Justices did not agree on the proper test to determine whether “adjacent” wetlands are jurisdictional.  The five-Justice majority held CWA jurisdiction extends only to wetlands that are “as a practical matter indistinguishable from waters of the United States,” which requires the party asserting jurisdiction over adjacent wetlands to show first  the adjacent body of water is a relatively permanent body of water connected to a traditional interstate navigable water, and  the wetland as a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.   The remaining 4 justices would have applied a slightly broader test that would include the majority’s definition but would also include wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.

A majority of the Court also appears to agree with Justice Scalia’s test in Rapanos plurality Opinion.  This test states that there are two categories of jurisdictional waters:  (1) relatively permanent bodies of water connected to traditional interstate navigable waters; and (2) wetlands with such a close physical connection to those waters that they were ‘as a practical matter indistinguishable’ from WOTUS.  There was no discussion of the application of the “relatively permanent bodies of water connected to traditional interstate navigable waters” standard, or how that might apply to cases involving tributaries, however.  Thus, while this Opinion did answer some questions, others remain.

Background

The Sacketts purchased a lot near Priest Lake in Idaho.  In preparation to build a home on the lot, they began backfilling the property with dirt and rock.  The EPA claimed the wetlands on the Sacketts’ lot were “adjacent to” an “unnamed tributary” on the other side of a 30-foot road.  That tributary fed into a non-navigable creek, which fed into Priest Lake, which the EPA designated as traditionally navigable.

A few months later, the EPA sent them a compliance order that the wetlands on their property were a “Water of the United States” and backfilling violated the Clean Water Act.  In particular, the EPA claimed the lot, when considered with all other “similarly situated” properties in the area, had a “significant nexus” to the jurisdictional lake, making the Sacketts’ lot a WOTUS.  The EPA demanded the Sacketts restore the property and threatened them with civil penalties of $40,000/day if they did not comply.

Litigation

The Sacketts filed suit under the Administrative Procedure Act alleging the EPA lacked jurisdiction because their property was not a WOTUS.  Initially, the trial court dismissed their suit finding the compliance order was not a final agency action–an issue that found its way to the US Supreme Court in 2012, when the Court held the Sacketts could bring their suit.

The trial court granted summary judgment to the EPA, finding the Sacketts’ lot was a WOTUS.  The United States Court of Appeals for the Ninth Circuit affirmed, holding because the Sacketts’ lot was an adjacent wetland with a significant nexus to a traditionally navigable water, the Clean Water Act applied.

The Sacketts sought review from the United States Supreme Court.

Applicable Law 

The federal Clean Water Act, passed in 1972, prohibits the point source discharge of any pollutant into “navigable waters.”  The CWA requires anyone seeking to make a covered discharge to obtain a federal permit from the EPA or US Army Corps of Engineers.  A pollutant includes contaminates like chemicals, but also includes rock, sand, and dirt.  “Navigable waters” are defined as “waters of the United States, including the territorial seas.”  [For more info on the Clean Water Act and agriculture, read a blog post here and listen to a podcast episode here.]

In 1977, Congress amended the CWA’s permitting section to include “wetlands adjacent thereto.”

In 2006, the US Supreme Court issued a fractured decision in Rapanos v. United States.  The 4-Justice plurality held that in order to be considered a WOTUS, a water must be a “relatively permanent” body of water and wetlands must “abut” a jurisdictional water.  In a concurring opinion, Justice Kennedy put forth a “significant nexus” test, finding waters were jurisdictional if they, in combination with similarly situated waters in the region, significantly affect the chemical, physical, and biological integrity of jurisdictional waters.

Supreme Court Opinion

Justice Alito authored the Opinion of the Court.  As noted below, the outcome was unanimous with all 9 Justices agreeing the Sacketts’ property is not a WOTUS, but the Justices differed on the proper test to apply to reach this conclusion.

History of CWA

Justice Alito began the Opinion of the Court with a look at this history of the CWA, which he wrote has been a “great success” at protecting the nation’s rivers, lakes, and streams from pollution. He described the CWA as a “potent weapon” with “crushing consequences even for inadvertent violations,” noting the potential for both civil and criminal penalties, including imprisonment and fines of up to $60,000/day.  He also said the permitting process involves significant costs and a process that can be “arduous, expensive, and long.”

Next, he turned to the Supreme Court cases addressing this issue, beginning with Riverside Bayview in 1985 where the Court unanimously held wetlands that actually abutted a navigable waterway were jurisdictional.  After that, the Court ruled in SWANCC in 2001 holding the CWA does not extend to isolated, intrastate “ponds that are not adjacent to open water.”  Then, the infamous Rapanos opinion was issued in 2006.  The four justices in the plurality, led by Justice Scalia, held there were two categories of jurisdictional waters:  (1) relatively permanent bodies of water connected to traditional interstate navigable waters; and (2) wetlands with such a close physical connection to those waters that they were ‘as a practical matter indistinguishable’ from WOTUS.  Applying this test, the plurality voted to vacate this decision.  The four dissenting justices would have deferred to the EPA’s determination that the wetlands at issue were jurisdictional.  Then, Justice Kennedy issued an opinion concurring in the judgment, but positing his “significant nexus” test.  He believed wetlands were jurisdictional if there was a “significant nexus” between the wetland and navigable waters such that the wetland, either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of those navigable waters.

Then, Justice Alito discussed the agency rulemaking that followed these decisions. In 2015, the Obama administration passed a rule the Opinion describes as offering “a muscular approach that would subject the vast majority of the nation’s water features to a case-by-case jurisdictional analysis” and categorically covered waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters.  This Rule was repealed by the Trump administration in 2019 and was replaced by the Navigable Waters Protection Rule.  The Opinion describes the Navigable Waters Protection Rule as a “narrower definition” that limited jurisdiction to traditional navigable waters and “adjacent” wetlands, defining “adjacent” as abutting wetlands and those separated from traditional navigable waters by features like berms or barriers.  That rule was vacated in 2021, and the Biden administration passed its own rule in 2023.  The Opinion described the Biden rule as “broader,” as it covered traditional navigable waters, tributaries, and adjacent wetlands and covered both those relatively permanent bodies of water and those with a significant nexus to a traditional navigable water.

Where things stand

Justice Alito then described the current approach to WOTUS and its impact on landowners.  He noted the EPA admits “almost all waters and wetlands” are potentially subject to regulation under the significant nexus test.  This, he wrote, “puts many property owners in a precarious position because it is often difficult to determine whether a particular piece of property contains waters of the United States.”  He explained, “even if a property appears dry, application of the guidance in a complicated manual ultimately decides whether it contains wetlands.”  This, combined with potential criminal penalties, “means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties.”

He noted landowners may ask the Corps for a jurisdictional determination, which is a written decision on whether a certain site constitutes a WOTUS. But, the Corps is under no obligation to provide this type of determination and has previously announced exceptions to the legal effect of these determinations.  The EPA admitted the Corps finds jurisdiction approximately 75% of the time.

For landowners receiving an adverse jurisdictional determination, options are limited, Justice Alito explains. They can go forward without a permit and face potential legal culpability.  They can challenge the determination in court, incurring the delay and expense of doing so, while also facing an “uphill battle” given the deferential standards of review afforded to agencies.  They could seek a permit from the Corps, which can take years and require an “exorbitant amount of money.” They can choose to build nothing, which Justice Alito believes many landowners would select given these options.

Proper Scope of CWA

The Opinion held that “the Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.'”  This reading follows from the CWA’s use of the plural term “waters.”   Justice Alito said the CWA repeatedly uses “waters” to refer to bodies of open waters like rivers, lakes, and streams.  He noted a similar reading of “water” in both Riverside Bayview and SWANCC.

The Court rejected the EPA’s argument that the term “waters” is naturally read to include wetlands because of the presence of water.  The CWA does not apply to all land where water is present.  However, given Congress’ 1977 amendment to include “adjacent” wetlands, it is clear that at least some wetlands are covered by the CWA.  Justice Alito then offered a mathematical equation that seems confusing at best (see Page 19 of the Opinion) to explain.  The Court noted it must harmonize the mention of “adjacent” wetlands in the permitting section of the CWA with the definition of WOTUS in the Act. The Opinion does so by holding that to be covered, wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Conversely, wetlands that are separate from traditional navigable waters cannot be considered part of those waters even if they are nearby.

The Court agreed with the Rapanos plurality approach that wetlands are jurisdictional when they are “as a practical matter indistinguishable from waters of the United States, such that it is ‘difficult to determine where the water ends and the wetland begins.'”  This occurs when there is a “continuous surface connection” to bodies of water that are WOTUS in their own right and “no clear demarcation” between the waters and wetlands. The Court did note some temporary interruptions in the surface connection may arise because of phenomena like low tides or dry spells.

Deference to EPA

The EPA asked the Court to defer to its current WOTUS definition, which includes the significant nexus test and finds wetlands jurisdictional if they are “neighboring” covered waters, even if separated by dry land.  The Court rejected this invitation as being inconsistent with the text and structure of the CWA. The Court noted that an overly broad interpretation of the CWA would improperly alter the balance of power between the federal and state governments.  In order to do this, there must be “exceedingly clear language” from Congress to do so, which the Court did not find. The Court also said there was no mention of “significant nexus” in the CWA, noting this means the EPA has “no statutory basis to impose it.”  The Court also noted vagueness concerns with the “significant nexus” test, particularly in light of the CWA’s criminal penalties.  The Court also rejected EPA’s argument that in 1977, Congress must have intended “adjacent” to have the same meaning as an existing Corps regulation that defined adjacency as “bordering, contiguous, or neighboring.”

Response to Concurring Opinions

Justice Alito said nothing in the concurring opinions of Justices Kagan and Kavanaugh undermines the majority’s analysis.  He referred to their arguments as “more than unfounded.”  He also said, “textualist arguments that ignore the operative text cannot be taken seriously.”

Summary

In conclusion, the Court held the CWA “extends only to those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right so that they are indistinguishable from those waters.”  The wetlands on the Sackett property are distinguishable from any possibly covered waters.  Thus, the Court reversed the US Court of Appeals for the Ninth Circuit and remands the case.

Justice Thomas Concurring Opinion

Justice Thomas issued a concurring opinion, which Justice Gorsuch joined.  They joined the Court’s opinion in full but wrote separately to focus beyond the meaning of “waters” and focus on “navigable” and “of the United States” instead.

He relied on the history of water regulation going back to the 1800s. He noted traditional CWA authority was limited in two ways: (1) the water had to be capable of being used as a highway for interstate or foreign commerce; and (2) Congress could regulate such waters only for purposes of their navigability.  States have primary jurisdiction over their waters, and Congress only has power over navigable waters that was granted by the Commerce Clause of the Constitution.  He writes that this authority is limited to regulations related to the channels of interstate commerce themselves and encompassed only “the power to keep the open and free from any obstruction to their navigation.”  He also noted some surface water connection is required between a tributary and traditionally navigable water.  He then turned to the New Deal era, noting Congress’ “greatly expanded conception” of Commerce Clause power. This expansion, however, did not fundamentally change the term “navigable waters.” It was this understanding of “navigable waters” that existed when the Clean Water Act was passed.

The CWA’s use of “navigable waters” and “waters of the United States” were not written on a blank slate, and the same terms has meaning in other legislation. The Corps of Engineers initially agreed with this limited approach to jurisdiction.  That changed, however, with the newly created EPA and courts who interpreted authority to regulate “anything that substantially affects interstate commerce by itself or in the aggregate.” To Thomas and Gorsuch, the EPA reads the CWA as deleting the word “navigable” when it used “waters of the United States.” This, he said, “cannot be right.” He reads “waters of the United States” as reinforcing, rather than lessening, the need for a water to at least be part of a continued highway for commerce.

Justice Thomas stated that the Court addressed this in SWANCC, and in doing so, “restored navigability as the touchstone of federal jurisdiction of the CWA.”  However, he said the agencies “effectively flouted” that decision. In light of the plain text of the CWA and the SWANCC opinion, “the CWA must be interpreted in light of Congress’ traditional authority over navigable waters.” Yet, for decades, the agencies have completely ignored navigability and expanded the CWA scope to the other limits of the New Deal-era Commerce Clause precedents.  The agencies’ broad approach and interpretation would “turn Congress’ traditionally limited navigation authority on its head.”

In applying this approach to the Sacketts’ property, he found no jurisdiction for a number of reasons: (1) no continuous surface connection to a traditional navigable water; (2) the non-navigable so-called ‘tributary’ across the street from the property is not a WOTUS because it has not, has never been, and cannot reasonably be used for interstate commerce; (3) the agencies have not attempted to establish Priest Lake is a navigable water as it is purely intrastate and has not been shown as a highway for interstate commerce; and (4) no allegation the Sacketts’ actions would obstruct or impede navigable capacity or suitability of the water for interstate commerce.

In conclusion, he stated that the Court’s opinion “curbs a serious expansion of federal authority,” but noted wetlands are just the beginning of the problems raised by the agencies’ assertion of jurisdiction.

  Justice Kavanagh Concurring in Judgment Only

Justice Kavanaugh was joined by Justices Kagan, Sotomayor, and Jackson in his concurrence.  These justices agreed the Sacketts’ property is not covered by the CWA and with the reversal of the US Court of Appeals for the Ninth Circuit.  They also agreed not to adopt the “significant nexus” test for determining whether a wetland is covered by the CWA.  They disagreed, however, with the Court’s test for determining when wetlands are jurisdictional. They believed the “continuous surface connection” test “departed from the statutory text, from 45 years of consistent agency practice, and from the Court’s precedence.  These Justices would adopt a test finding that “adjoining” wetlands are jurisdictional.  They would define “adjoining” as including: (1) those wetlands contiguous to or bordering a covered water; and (2) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”  Essentially, the Opinion of the Court and this Concurring Opinion agree on the first category, but disagree about those wetlands falling within the second.  These Justices fear “by narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the CWA, with significant repercussions for water quality and flood control throughout the United States.”

The question for Justice Kavanaugh, comes down to the meaning of “adjacent,” which he said means lying near or close to, neighboring, and not widely separated, but not requiring the two things touch each other.  He noted that other portions of the CWA use the term “adjoining,” but here Congress chose “adjacent,” a distinction critical to this case.  For 45 years, and over 8 Presidential administrations, the Corps has always included those wetlands in his second category in the definition of “adjacent wetlands.”

Justice Kavanaugh wrote that the Court’s continuous surface connection test disregards the ordinary meaning of adjacent, by reading adjacent as adjoining.  In doing so, the Court excludes wetlands the CWA has always been interpreted to cover.  “We should not create ambiguity where none exists.  And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining’ as the Court does today.”

Finally, he noted the Court’s decision will matter a great deal in the real world.  He offered an example of the Mississippi River with an extensive levee system to prevent flooding.  He read the Court’s opinion to preclude CWA coverage for wetlands on the other side of the levees, even though they are an important part of the flood control project.  He also pointed out a number of unanswered questions created by the Court’s opinion.

Thus, these Justices concur only in the Court’s judgment.

Justice Kagan Concurring in Judgment Only

Justice Kagan issued an opinion concurring in the judgment in which Justices Sotomayor and Jackson both joined.  I think this opinion is fairy defined as being spicy.  Justice Kagan agreed with Justice Kavanaugh that Justice Alito’s opinion misconstrues the meaning of “adjacent” which includes not only when things touch one another, but also when they are nearby. The Court’s “contiguous surface connection” test, she wrote, misconstrues the meaning of adjacency.  Looking at the history and water quality issues when the CWA was passed, she said, “And make no mistake: Congress wrote the statute it meant to.”  However, she said the majority “believes Congress went too far” and attempts to “rescue property owners from Congress’s too-ambitious program of pollution control.”  To do this, she wrote, “the majority shelves the usual rules of interpretation–reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with the judges’ policy preferences.” She viewed Justice Alito’s opinion as a “thumb on the scale for property owners.”  She would adopt the two-part standard articulated by Justice Kavanaugh in his opinion.

Key Takeaways 

There have been three main questions with the scope of WOTUS over the past decades:

(1) Is the “significant nexus” test the proper way to determine a WOTUS?  Likely the biggest takeaway from this case is the “significant nexus” test was unanimously rejected by the US Supreme Court.  Since 2006, landowners, litigants, and courts have struggled with how to square the Rapanos decision and, in particular, Justice Kennedy’s “significant nexus” test.  This case answers that question.

(2) How does a court determine jurisdiction over wetlands?  This case answers that question as well.  The majority of the Court agrees with the “continuous surface connection” test, meaning that wetlands are jurisdictional when they are “as a practical matter indistinguishable from waters of the United States,” which requires the party asserting jurisdiction over adjacent wetlands to show first the adjacent body of water is a relatively permanent body of water connected to a traditional interstate navigable water, and the wetland as a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.  This does not include, as Justices Kavanaugh, Kagan, Sotomayor, and Jackson would have, those wetlands separated from jurisdictional waters only by a man-made dike or barrier, natural river berm, beach dune, or the like.  Interestingly, both of these tests are more narrow than the rules passed by the Obama and Trump administration.  The majority test is more narrow than the Trump Navigable Water Protection Rule, while the four concurring justices posit a test identical to the Trump rule.

(3) What is the proper test to determine what constitutes a jurisdictional tributary?  The Court did not answer this question as it was simply not before them in this case.  It does appear, however, at least a majority of the Court would apply Justice Scalia’s “relatively permanent body of water” test from Rapanos as part of this analysis.

One additional question likely remains in the aftermath of this decision.  What happens to the Biden Rule?  In all likelihood, the Biden Rule will have to be rescinded and re-written due to its inclusion and reliance on the “significant nexus” test, which has been rejected by a unanimous Court.

Lastly, keep in mind that while this decision limits the federal agencies’ ability to regulate certain wetlands, states are not so limited.  States have broader power to regulate such wetlands, and are not constrained by this decision or the Commerce Clause in doing so.