Supreme Court Significantly Contracts Scope of Clean Water Act Jurisdiction Over Wetlands

On May 25, 2023, the Supreme Court of the United States issued a decision in Sackett v. Environmental Protection Agency, 598 U.S. ___ (2023), significantly contracting the jurisdictional reach of the federal Clean Water Act (CWA) over wetlands. The majority decision, penned by Justice Alito and joined by Justices Roberts, Thomas, Gorsuch and Barrett, is the most consequential CWA decision in decades, one likely to exclude millions of acres of formerly jurisdictional wetlands from federal regulation.

Since the mid-1970s, the federal agencies charged with implementing the CWA, the Environmental Protection Agency (EPA) and the Army Corps of Engineers, have held that the statutory term “Waters of the United States” (WOTUS), which defines the jurisdictional reach of the CWA, extended not simply to traditional navigable waters (TNWs) such as lakes, rivers and oceans but also to wetlands “adjacent” to such waters, and that “adjacent” wetlands included both those that were contiguous to TNWs as well as those that were simply nearby. The agencies’ most recent regulatory definition of WOTUS, for example, encompasses non-contiguous wetlands if they demonstrate a “significant nexus” to a TNW, a determination the agencies have made on a case-by-case basis by considering a wide range of hydrological and ecological factors. Land developers and other regulated parties seeking to fill or impact wetlands have typically encountered this process when seeking a “jurisdictional determination” from the Corps as to whether a federal dredge-and-fill permit is required under Section 404 of the CWA. Critics of the agencies’ “significant nexus” test argued that it was an overly broad reading of the statute and an unwarranted interference with states’ traditional authority to regulate the use of land and water. 

In Sackett, the Supreme Court agreed. Based on a textual analysis of the key statutes and a review of the court’s prior case law on CWA jurisdiction—including United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U. S. 715 (2006)—the court held that the CWA’s use of the term “waters” in “waters of the United States” refers only to “geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and adjacent wetlands that are “indistinguishable from those bodies of water due to a continuous surface connection.”

To assert jurisdiction over an “adjacent” wetland under the CWA, the court held, a party must demonstrate two circumstances:

1. the adjacent body of water constitutes a “water of the United States” (i.e., 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.”

The court rejected calls by concurring Justices Kavanaugh, Kagan, Sotomayor and Jackson for a traditional, broader reading of “adjacent” to include wetlands “nearby” TNWs, not simply those that are contiguous to TNWs. Notably, all nine justices either wrote or signed on to opinions that rejected the “significant nexus” test, and all nine agreed that the Sacketts’ wetlands were not jurisdictional.

The decision has immediate ramifications for regulated parties and prompts many questions. First, the case effectively invalidates much of EPA’s and the Corps’ new definition of WOTUS, which was published earlier this year and relied heavily on the “significant nexus” test. Now, only wetlands with a “continuous surface connection” to a TNW will be subject to federal jurisdiction. So, for example, if even a narrow strip of reliably dry land exists between a wetland and a TNW, that may now be sufficient under Sackett to remove the wetland from federal jurisdiction, notwithstanding any “significant nexus” between the wetland and TNW. The Sackett decision will also force the agencies to revise their longstanding guidance on making jurisdictional determinations, the Corps’ Wetlands Delineation Manual, and the decision will impact EPA’s approach to enforcing wetland-related violations of the CWA.

In the meantime, the court’s decision raises significant practical questions, including but not limited to: 

• How will the Corps handle pending or past jurisdictional determinations that were based on the now invalidated “significant nexus” test?
• How will the EPA handle pending enforcement actions where the alleged violations were premised on the “significant nexus” test?
• Under the court’s new “continuous connection” test, how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by CWA?
• How does the “continuous connection” test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent?
• How does the test operate in areas where storms, floods and erosion frequently shift or breach natural river berms?
• Can a continuous surface connection be established by a ditch, swale, pipe or culvert?

The agencies are likely to publish new guidance on how they will address these and other questions, which undoubtedly will be tested in the lower courts in the months and years ahead.

Importantly, because the court’s decision will remove many wetlands from federal jurisdiction, state wetland protection laws will play a larger role in determining which regulatory requirements will apply to land developers and others seeking to impact wetlands. These requirements vary significantly from state to state. For example, Minnesota has a well-developed regulatory program governing impacts to wetlands, including the state’s Wetland Conservation Act and the Minnesota Department of Natural Resources’ Public Waters Work Permit program, which together protect a broader range of wetlands than were covered even under EPA’s and the Corps’ “significant nexus” test. For developers in Minnesota, then, the Sackett decision may not change the scope of regulated wetlands, although it may remove the need to obtain an often costly federal Section 404 wetland permit and the attendant Section 401 state certification. Conversely, in other states that have minimal state wetland regulation, the Sackett decision could substantially reduce the regulatory steps required to impact wetlands.