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May 25, 2023

Supreme Court Decides Sackett v. EPA

On May 25, 2023, the Supreme Court of the United States decided Sackett v. EPA, No. 21-454, holding that the Clean Water Act (CWA) extends only to wetlands that are as a practical matter indistinguishable from “waters of the United States” — which requires a showing that (1) an adjacent body of water is 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.”

Petitioners Michael and Chantell Sackett purchased land near Priest Lake, Idaho, and began backfilling the lot with dirt without first securing a CWA permit. The Environmental Protection Agency notified the Sacketts that their property contained wetlands and that their backfilling violated the CWA, which prohibits the discharge of pollutants (including rocks and sand) into “navigable waters,” which are defined as “waters of the United States.” The EPA classified the wetlands on the property as “waters of the United States” because (a) they were near a ditch, (b) which fed into a creek, and (c) which fed into Priest Lake, a navigable intrastate lake. The EPA ordered the Sacketts to restore the site.

The Sacketts sued under the Administrative Procedure Act and claimed that the EPA did not have jurisdiction, since any wetlands on their property were not “waters of the United States.” After years of proceedings, the district court entered summary judgment for the EPA. On appeal, the Ninth Circuit affirmed, holding that the CWA covers wetlands with a “significant nexus” to traditional navigable waters and that the Sacketts’ lot satisfied that standard. The Ninth Circuit’s “significant nexus” standard was derived from a concurring opinion in Rapanos v. United States, the most recent Supreme Court decision addressing the CWA, but for which there was no controlling opinion. The Supreme Court granted certiorari to decide the proper test for determining whether wetlands are “waters of the United States.”

In a decision in which the Justices were unanimous about the result but not the reasoning, the Supreme Court reversed and held that the Sacketts’ land lacked enough of a connection to nearby Priest Lake to require them to get a permit under the CWA. Writing for the majority, Justice Alito held that the CWA covers only “wetlands with a connection to bodies that are waters of the United States in their own rights.” This result flowed from the text of the CWA, similar text in other statutes, and statutory history.

The Court defined “waters of the United States” to be 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.’” Applying standard dictionary definitions of the term “waters,” the Court concluded that it would be hard to include classifying “lands, wet or otherwise, as ‘waters.’” Similarly, the phrase “navigable” in the CWA focused on traditional waters like oceans, lakes, rivers, and streams that are navigable by ships, rather than smaller bodies like puddles or isolated ponds. Rejecting a broader argument that “waters of the United States” could encompass wetlands because wetlands have water,” the Court reasoned that it would be “hard to see how the States’ role in regulating water resources would remain ‘primary’ if the EPA had jurisdiction over anything defined by the presence of water.”

Still, the Court concluded that at least some “wetlands” can comprise “waters of the United States.” But given the structure of the statute, the Court concluded that the wetland itself must be “indistinguishably part of a body of water that itself contains ‘waters’ under the CWA.” Thus, the Court held that wetlands that are separate from traditional navigable waters “cannot be considered part of those waters, even if they are located nearby.” A wetland is part of the “waters of the United States,” the Court reasoned, when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”

The Court rejected the EPA’s argument to defer to its broader interpretation of the CWA. Declining to adopt the “significant nexus” test imposed by the Ninth Circuit (and which one concurring Justice had suggested in a prior opinion), the Court held that a “significant nexus” standard would give rise to significant vagueness concerns in light of the CWA’s criminal penalties. Instead, the Court held, to assert jurisdiction over an adjacent wetland under the CWA, a party must first establish that the adjacent body of water is a “water of the United States;” and second, “that the wetland has a continuous surface connection with that water, making it difficult to determine whether the ‘water’ ends and the ‘wetland’ begins.” Because the wetlands on the Sacketts’ property were distinguishable from any possibly covered “waters,” the Court reversed.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Thomas, Gorsuch, and Barrett joined. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Kagan filed an opinion concurring in the judgment, in which Justices Sotomayor and Jackson joined. Justice Kavanaugh filed an opinion concurring in the judgment, in which Justices Sotomayor, Kagan, and Jackson joined.

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