By Jay Landers

In October, for the first time since 2006, the U.S. Supreme Court heard a case involving the contentious question of which types of water bodies are subject to federal jurisdiction under the Clean Water Act. In a much-anticipated decision handed down in late May, the court significantly limited federal authority over certain types of wetlands and other waterways.

Hailed by pro-development interests as a win for property rights and the rule of law, the ruling simultaneously prompted an outpouring of outrage and concern among environmental groups and others who view the outcome of the case as ecologically devastating and scientifically unsound.

Case history

The court’s May 25 decision concerns the case of Sackett v. Environmental Protection Agency, a long-running dispute involving a couple’s efforts to develop their vacant lot in a residential subdivision near Idaho’s Priest Lake. In 2007, Michael and Chantell Sackett obtained the necessary local permits and began constructing a home on the lot, which has no surface water connection to any body of water. However, the EPA subsequently ordered the Sacketts to stop construction after determining that the lot contained wetlands that were subject to the CWA. The EPA also ordered the Sacketts to restore the wetlands and obtain a federal CWA permit before building on the property.

In its determination, the EPA contended that the Sacketts’ lot qualified as “navigable waters,” the term that Congress used in 1972 when it created a permitting program to regulate discharges of pollutants to bodies of water. The CWA defines navigable waters as “the waters of the United States, including the territorial seas.” Over time, the EPA and the U.S. Army Corps of Engineers have expanded the definition of waters of the United States to include waters that are not navigable in the traditional sense. This definition has been the subject of three previous Supreme Court cases.

In the 1985 case United States v. Riverside Bayview, the Supreme Court upheld the federal government’s claim that wetlands adjoining traditional navigable waters and their tributaries were under the jurisdiction of the CWA. However, the court ruled against the federal government in 2001 in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. In that decision, the court declared that “isolated waters” — meaning intrastate waters that were not navigable in the traditional sense and were neither tributaries nor adjoining to navigable waters — could not be subject to the CWA solely on the presence of migratory birds.

Finally, in the 2006 case of Rapanos v. United States, the court sought to answer the question of whether the federal government may regulate wetlands abutting nonnavigable tributaries to navigable waters. The resulting decision did little to clarify the situation.

In a plurality opinion, Justice Antonin Scalia found that federal jurisdiction over nonnavigable waterways was limited to “relatively permanent, standing, or flowing bodies of water” and that wetlands, if they were to be subject to regulation under the CWA, must have a “continuous surface connection” to other waters covered by the law. However, a separate, concurring opinion by Justice Anthony Kennedy concluded that wetlands were waters of the United States if they had a “significant nexus” to traditional navigable waters, meaning that they significantly affect the chemical, physical, or biological integrity of waters subject to federal jurisdiction.

In its 2007 order halting the development of the Sacketts’ property, the EPA relied on Kennedy’s significant nexus test to determine that the lot was a jurisdictional wetland under the CWA.

Before the court

In cases before the U.S. District Court for the District of Idaho and the U.S. Court of Appeals for the 9th Circuit, the Sacketts relied on Scalia’s opinion in the Rapanos case, maintaining that their lot lacked a continuous surface connection to other regulated waters and therefore was not subject to the CWA. Both courts ruled against the Sacketts, prompting the couple to appeal to the Supreme Court.

Before the court, the plaintiffs argued that the significant nexus test should be abandoned in favor of an approach that primarily relies on a determination that a wetland has a continuous surface-water connection with a hydrogeographic feature that normally would be considered a water of the United States (see “Supreme Court case challenges federal protection for certain wetlands,” Civil Engineering Online, Oct. 31, 2022).

For its part, the federal government maintained before the court that the significant nexus test was the proper method for determining that the Sacketts’ property was jurisdictional wetlands. Using this test, the government argued that the lot and a nearby fen, though separated by a road, were connected by shallow subsurface flow. Because the fen drained directly into Priest Lake, it was considered a water of the U.S. And because of the subsurface connection between the lot and the fen, the lot, by extension, also was a covered water, according to the government.

The defense also cited findings by the EPA that the lot included various physical characteristics typical of wetlands. Further, the government argued before the court that congressional amendments to the CWA in 1977 reaffirmed the act’s coverage of “adjacent” wetlands.

A win for the Sacketts

On the whole, the Supreme Court’s May 25 decision amounted to a resounding victory for the Sacketts, with the justices unanimously agreeing that their property does not constitute federally protected wetlands. However, the unanimity ended there.

Writing the opinion that was joined by four other justices, Justice Samuel Alito adopted language used by Scalia in the 2006 Rapanos decision to limit the phrase “waters of the United States” to mean “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”

As for determining whether a wetland is covered under the CWA, Alito upheld Scalia’s “continuous surface test” and overturned Kennedy’s “significant nexus” test from the Rapanos decision.

“In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” Alito wrote. “This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent (body of water constitutes) . . . ‘water 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.”

Pointed concerns

Separate concurring opinions by justices Elena Kagan and Brett Kavanaugh raised pointed concerns about certain aspects of the majority’s opinion, particularly its treatment of wetlands that are “adjacent” to waters of the U.S. versus wetlands that “adjoin” such waters.

With its reliance on the continuous surface-connection test, Alito’s opinion effectively removes federal jurisdiction from wetlands that do not physically adjoin a water of the U.S. “Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Alito maintained.

Citing the use of the term “adjacent” wetlands by Congress in its 1977 amendments to the CWA, Kagan argued that certain wetlands should be subject to federal jurisdiction even if they are not physically touching a water of the U.S. “‘Adjacent' means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune,” Kagan wrote.

For his part, Kavanaugh pointed to a host of problems likely to result from the court’s decision to exclude adjacent wetlands from CWA protection simply because they lack a continuous surface connection to waters of the U.S. “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 Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.

Kavanaugh went on to provide specific examples of these potential “repercussions.” “For example, the Mississippi River features an extensive levee system to prevent flooding,” he noted. “Under the Court’s ‘continuous surface connection’ test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project. Likewise, federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries. Those are just two of many examples of how the Court’s overly narrow view of the Clean Water Act will have concrete impact.”

Sackett supporters rejoice

Supporters of the Sacketts hailed the Supreme Court’s decision as a decisive victory for regulatory clarity, property rights, and federalism.

“The Court’s ruling returns the scope of the Clean Water Act to its original and proper limits,” said Damien Schiff, a senior attorney at the Pacific Legal Foundation who argued the case, in a May 25 statement. “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers.”

Republicans in the U.S. House were quick to cheer the ruling. “The Supreme Court’s decision is clearly a decisive win for America’s farmers, small businesses, property owners, and those who help build our infrastructure,” said Rep. Sam Graves, R-Mo., the chair of the House Committee on Transportation and Infrastructure, and Rep. David Rouzer, R-N.C., the chair of the committee’s Subcommittee on Water Resources, in a joint May 25 statement.

The Associated General Contractors of America praised the ruling as a win for the construction industry and infrastructure development. “The Supreme Court has provided much-needed clarity on what is, and is not, a Water of the U.S.,” said Stephen Sandherr, the AGC’s CEO, in a May 25 news release. “This decision will return consistency and sanity to the permitting process. The decision will allow vital infrastructure and development projects to proceed in a timely manner while still providing strong protections for the actual waters of the U.S.”

A longtime critic of what it viewed as an overly expansive policy of federal jurisdiction of wetlands, the American Farm Bureau Federation declared victory in the wake of the Supreme Court’s decision. “AFBF appreciates the Supreme Court justices for their careful consideration of the implications of Sackett v. EPA,” said Zippy Duvall, the federation’s president, in a May 25 news release. “The EPA clearly overstepped its authority under the Clean Water Act by restricting private property owners from developing their land despite being far from the nearest navigable water.”

Firestorm of criticism

The Supreme Court’s decision prompted a firestorm of criticism from the White House, congressional Democrats, and environmental groups. “The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards,” said President Joe Biden in a May 25 statement. “It puts our Nation’s wetland — and the rivers, streams, lakes, and ponds connected to them — at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on.”

“Today’s decision upends the legal framework that has protected America’s waters for decades,” Biden continued. “It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities. I am committed to protecting clean air and water for our kids for generations to come. My team will work with the Department of Justice and relevant agencies to carefully review this decision and use every legal authority we have to protect our Nation’s waters for the people and communities that depend on them. We will work with states, cities, and Tribal communities to pass and uphold critical protections for their residents.”

EPA Administrator Michael Regan said in a May 25 news release that he was “disappointed” by the court’s decision that “erodes longstanding clean water protections.” The Biden administration “has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve,” Regan said. “These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.”

“Over the past 50 years, we have made transformational progress — rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country,” Regan said. “A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters — now and for future generations.”

Democrats on Capitol Hill excoriated the decision. “Today’s misguided ruling from the Supreme Court is a massive gift for polluters and a devastating setback for clean water in the United States,” said Rep. Rick Larsen, D-Wash., the ranking member of the House Committee on Transportation and Infrastructure, in a May 25 statement. “The idea that waters are only connected if they are contiguous on the surface flies in the face of everything we know about protecting our water and the communities who depend on it.”

“This ruling will have a costly consequence of increasing water bills on residents and businesses as water agencies will now have to pay to clean up the mess caused by more pollution in our drinking water sources,” said Rep. Grace Napolitano, D-Calif., the ranking member of House Committee on Transportation and Infrastructure’s Subcommittee on Water Resources and Environment, in a May 25 statement. “This is particularly harmful in the Western United States where many of our residents get their water from streams that only flow following major storm events.”

Environmentalists lament

Similar concerns were voiced by the National Association of Wetland Managers. The Supreme Court “just reinterpreted the Clean Water Act and changed the intent as written by Congress in 1972, perverting the original Congressional intent behind the Clean Water Act, our nation’s landmark environmental legislation that has successfully cleaned up our nation’s waters for over 50 years,” said Marla Stelk, the organization’s executive director, in a May 26 statement.

“This decision is incongruous with modern science and universally agreed upon understandings of hydrological connectivity,” Stelk said. “The outcome will undoubtedly manifest in serious negative consequences on public health and safety, water quality, aquatic health, flood control, and wildlife.”

Other groups also predicted that severe environmental harm would result from the ruling. “Thousands of bodies of water — and nearly half of all wetlands in the lower 48 states — just lost their Clean Water Act protections,” said Marc Yaggi, CEO of the environmental organization Waterkeeper Alliance, in a May 25 statement. “The Court’s shortsighted decision will have devastating consequences for our communities and hinder our right, under the Clean Water Act, to safeguard our nation’s waters.”

The Stroud Water Research Center, a nonprofit organization advancing knowledge and stewardship of freshwater systems, called for new federal legislation specifically protecting wetlands. “Science tells us that wetlands are integral components of streams, rivers, lakes, and estuaries; their loss or damage can negatively impact their adjacent waters,” said Dave Arscott, Ph.D., the executive director of the center, in a June 7 statement.

“A federal law protecting wetlands specifically for their inherent value of harboring biodiversity, buffering pollution, and reducing the intensity of flooding downstream could help protect the freshwater resources we need,” Arscott said. “Currently, there isn't one. It's up to voters and their elected officials to change that.”

Looking ahead

Although the extent to which the types of problems envisioned by Kavanaugh will occur remains to be seen, aspects of Alito’s continuous surface test almost certainly will necessitate future interpretation by the EPA and the Corps, says Michael Ford, counsel for the law firm Snell & Wilmer, who specializes in environmental and worker safety issues.

In his decision, Alito noted “two caveats” to the use of the continuous surface test, Ford says. “First, a temporary interruption in a surface connection should not eliminate jurisdiction. What constitutes ‘temporary’ is unclear and will likely be the topic of agency guidance (or rulemaking) and eventually litigation. Second, illegal barriers will not eliminate jurisdiction. In other words, a CWA permit may be needed to build the barrier itself if it is going to be partially located in the ‘continuous surface connection’ water. I suspect the Corps will take a close look at this issue when issuing permits for structures that may eliminate a connection to otherwise adjacent wetlands or jurisdictional waters.”

At the same time, the full effect of the Supreme Court’s decision on such waterways as desert washes also will not be known until after the conclusion of future regulatory procedures and legal challenges, Ford says. “In the arid Southwest, jurisdiction over ephemeral washes is a much bigger issue than jurisdiction over wetlands,” he notes. “Few ephemerals should be subject to jurisdiction now, although there will still be some uncertainty as the agency and courts flesh out what exactly ‘relatively permanent’ means.”

The decision in the Sackett case also means that the Biden administration will have to revise the final rule issued by the EPA and the Corps in December 2022 defining the term “waters of the United States.” Essentially, the rule, which is only effective in 23 states due to ongoing litigation, regards certain waters as jurisdictional if they are determined to be relatively permanent or they meet the criteria of the significant nexus test.

The EPA “has announced it will interpret its jurisdiction consistent with the Sackett decision,” Ford says. “While I expect EPA will attempt to construe Sackett as narrowly as possible, the significant nexus test is dead for practical purposes. EPA will likely have to amend its regulations to be consistent with the decision.”