Written by Gregor I. McGregor, Esq.
On May 25 the United States Supreme Court, ruling in the case of Sackett v. EPA, sharply limited the scope of protection for the nation’s waters under the federal Clean Water Act (CWA). The Court redefined the CWA’s coverage of “waters of the United States” which had been hotly contested since the Court’s previous decision on point and EPA’s regulatory expansion of what adjacent wetlands are included.
The new decision is Sackett et al. v. U.S. Environmental Protection Agency et al., No. 21-454, 2023 WL 3632751 (U.S. May 25, 2023). The decision reversed a lower court decision of the 9th Circuit Court of Appeals and in effect overturned the important earlier case of Rapanos v. United States, 547 U.S. 715 (2006). This article examines the Sackett ruling, the Rapanos reversal, and what amounts to repudiation of the EPA and U.S. Army Corps of Engineers (COE) WOTUS rule, freshly issued in December 2022, which had clarified federal jurisdiction over wetlands adjacent to navigable waters.
The majority opinion in Sackett states that the CWA, as they interpret and apply it, extends protection and permit requirements only to those waters that are described “in ordinary parlance” as “streams, oceans, rivers, and lakes,” and to wetlands only if those wetlands have a “continuous surface connection” to such waters “making it difficult to determine where the water ends and the wetland begins.”
Specifically, in the majority opinion written by Justice Samuel Alito, the Supreme Court stated its central tenet: “We hold that the CWA extends to only 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.”
In effect, the Supreme Court (nickname SCOTUS) has decided that polluting or filling in many types of wetlands does not need EPA and COE permits as they are not governed by the CWA. In other words, they do not constitute what are termed “federal wetlands.” This came after decades of rulemaking and court litigation concerning the definition of “waters of the United States” (acronym WOTUS) under the CWA and months after December 30, 2022 when the EPA and COE announced their final rule entitled “Revised Definition of Waters of the United States.“ The Biden Administration had taken a year to re-establish a definition of WOTUS, hoping to create a “durable” definition to reduce uncertainty, saying it was taking into account Supreme Court decisions, established science, and agency technical expertise.
The history is instructive. The term WOTUS had been a flashpoint. On one side are environmental organizations and public health advocates who wanted to broaden limits on pollution and fill material entering the nation’s waters. On the other side are farmers, ranchers, oil and gas interests, builders, developers, and industry advocates who resisted extending regulations as too burdensome. The former asserted that a relaxed WOTUS allowed business and industry to dump pollutants into unprotected waterways and fill in some important wetlands, threatening public water supplies downstream and harming wildlife and habitat. The latter complained of federal overreach stretching into puddles, potholes, gullies, creeks, and ravines on their federal leased lands and private properties.
The finalized 2022 regulations protected myriad small streams, wetlands, ponds, and other waterways, repealing a Trump-era rule that federal courts had thrown out which environmentalists said left waterways vulnerable to pollution, and restoring an Obama Administration set of federal protections. The Trump Administration rollback was a part of its campaign to undo thousands of environmental, land use, and public health and safety regulations. This deregulation effort reached not just statutes and regulations like WOTUS, but also all manner of federal guidelines, policies, programs, permits, financial assistance, tax provisions, legal liabilities, enforcement priorities, pending court cases, interstate compacts, and even international treaties and compacts.
The final WOTUS rule at the end of 2022, while technically dealing only with legal jurisdiction (the need for permits to do work in or near or affecting federal waters and adjacent wetlands) was offered by EPA to settle the decades of back-and-forth rulemaking by balancing protection of the nation’s water resources with the needs of all water users, whether farmers, ranchers, industry, water suppliers, recreations interests, or watershed organizations.
Only a few months after this 2022 WOTUS rule, though, the Supreme Court had held oral arguments in the Sackett case challenging CWA regulatory jurisdiction over remote wetlands based on the “significant nexus” test. An Idaho couple, Chantell and Michael Sackett, had started to fill their lot to build a home near a lake. EPA had stopped their work in 2007, the year after the ruling in Rapanos, finding that the wetlands on their property were federally regulated, so they needed a CWA permit. The Rapanos case had left the nation with two competing WOTUS definitions and the Sacketts sought to curtail the CWA in a test case with lawyers provided by the Pacific Legal Foundation.
Now that the Supreme Court has decided the Sackett case, in the Sackett’s favor, announcing a wholesale redefinition of WOTUS but with open conflicts among the justices, uncertainty reigns in the regulated communities, the agencies, and the environmental and public health constituencies. The CWA has protected the integrity of US lakes, rivers, streams, and other water bodies for 50 years, since it was signed by then President Richard Nixon in 1972. The Sackett decision is a shock to that mainstream environmental statute. The decision seems to go even further than policies and program changes of the Trump Administration.
The ruling in Sackett was technically unanimous, as all nine justices agreed that the CWA should not apply to a parcel of land owned by an Idaho couple. All agreed the Sacketts should not have been subject to EPA’s oversight because the wetlands on their property were not subject to regulation in any event. The justices were sharply divided in their legal reasoning, however, with sharp disagreement about a new test the majority established to determine which wetlands are covered by the law. So much so that the debate continues over what ought to be the definition (and what should be the determinative factors) of a WOTUS.
In a real way the battle in Sackett v. EPA was over whether WOTUS is to include wetlands which are “adjacent” to the water, or must they be “adjoining.” During oral arguments in the case last October, the hearing was dominated by a discussion of which wetlands should be considered “adjacent” to lakes and rivers as per the wording of the CWA. The Sackett decision reverses the U.S Circuit Court of Appeals for the 9th Circuit. That Court had ruled for EPA based on the “significant nexus” concurrence from the earlier Rapanos case, saying the Sacketts’ lot and adjacent wetlands significantly affect the chemical, physical and biological integrity of nearby Priest Lake. The Sacketts then petitioned for certiorari before the Supreme Court, which agreed to determine whether the 9th Circuit applied the correct test for assessing whether wetlands are WOTUS.
At oral argument, the Sacketts’ lawyer said allowing the EPA to regulate all wetlands that significantly affect waters of the United States would erase any meaningful distinction between land and water. The Sacketts instead proposed a test based on Justice Antonin Scalia’s plurality opinion from Rapanos, which considers whether a wetland has a continuous surface-water connection to waters of the US governed by the CWA. The EPA, represented by the Justice Department, argued that the Sacketts’ proposed standard was not grounded in the text, intention or history of the CWA and would undermine its purpose of providing comprehensive protection to navigable waters.
While all nine justices concurred in the judgment reversing the 9th Circuit’s application of the significant nexus test, the justices are split over the definition of “adjacent.” Four justices joined a concurring opinion written by Justice Brett M. Kavanaugh, agreeing “with the court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the act and are therefore not subject to permitting requirements.” He would have applied the broader definition of “adjacent,” however, to include wetlands near a navigable body of water. His reasoning was based on 1977 CWA amendments, the Supreme Court precedents, longstanding EPA and COE practice, and dictionary definitions that unambiguously stated that the word “adjacent” is broader than and distinguished from “adjoining.”
Justice Samuel Alito, writing for the majority, acknowledged that “[d]ictionaries tell us that the term ‘adjacent’ may mean either ‘contiguous’ or ‘near,’” but he nonetheless decided that the word “adjoining” is what Congress meant. On this point, Kavanaugh (whose concurrence was also signed by Justices Jackson, Kagan, and Sotomayor) argued that the court majority had misinterpreted the plain meaning of the word: “The ordinary meaning of the term ‘adjacent’ has not changed since Congress amended the Clean Water Act in 1977 to expressly cover ‘wetlands adjacent’ to waters of the United States.”
The split on the Court is more than about the meaning of a word in the statute. Also at stake is the effectiveness of the Act to accomplish the purposes of the Congress. Kavanaugh pointedly added that the decision would harm the federal government’s ability to address pollution and flooding. “By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “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.”
In a second concurring opinion, Justice Elena Kagan, referring to the court’s decision in June 2022 to curtail the EPA’s ability to restrict power plant emissions, criticized the majority’s interpretation of the law. “There,” she wrote, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”
It is unusual for Justice Kavanaugh to break with his conservative colleagues. His concurring opinion hits hard on their reasoning departing from the text of the law. In his words, the “Court is imposing a restriction nowhere to be found in the text.” He would have included wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” He added, “There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes and other waters.”
Justice Kagan took it to a higher level, criticizing the majority’s approach to statutory interpretation and even their political motives. In her concurring opinion, she noted “the majority shelves the usual rules of interpretation — reading the text, determining what the words used there mean, and applying that ordinary understanding concurring in judgment even if it conflicts with judges’ policy preferences.” She added, “Congress wrote the statute it meant to…[A] court may not rewrite Congress’s plain instructions because they go further than preferred…That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) ‘adjacent’ to covered waters…[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.”
Justice Kagan gave an example of the difference between adjoining and adjacent. “In ordinary language,” she wrote, “one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”
Justice Alito responded, quoting from the earlier Clean Air Act decision, that Congress must use “exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the government over private property.”
Justice Kagan rejoined: “Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate.”
And so, in summary, as it now stands after Sackett, federal jurisdiction under the Clean Water Act extends to only those wetlands which have a continuous surface connection to (are adjoining or touching) bodies of water that constitute “waters of the United States” (a relatively permanent body of water connected to traditional interstate navigable waters) such that the wetlands are as a practical matter indistinguishable from the waters, making it difficult to determine where the water ends and the wetland begins.
Let’s look at what has been lost, legally. That is, specifically what waters were previously under EPA and COE jurisdiction under the prior WOTUS definitions but are now no longer federally regulated. The WOTUS rule, now invalid, construed the term “waters of the United States” to include the following:
- Traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters” under the Clean Water Act);
- Impoundments of other jurisdictional WOTUS;
- Tributaries to either of the above waters, or when the tributaries meet the “relatively permanent” standard or the “significant nexus” standard, (collectively, “jurisdictional tributaries”);
- Wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent and with a continuous surface connection to relatively permanent tributaries and impoundments; and wetlands adjacent to other jurisdictional tributaries when such wetlands meet the “significant nexus” standard; and
- Intrastate lakes and ponds, streams or wetlands as defined in #1-4 above, that meet either the “relatively permanent” standard, or the “significant nexus” standard.
This definition in the WOTUS rule focused on two separate criteria, namely “relatively permanent” and “significant nexus,” both of which came out of the Supreme Court’s decision in Rapanos. There the Supreme Court had failed to reach a majority opinion. Justice Scalia wrote a plurality opinion and Justice Kennedy wrote a concurring opinion—each with different frameworks, really competing concepts, for defining what is WOTUS. Justice Kennedy’s test, which typically had been applied since then, looked at whether the wetlands or non-navigable waterbodies at issue bear a “significant nexus” to a traditional navigable waterway. Justice Scalia’s “relatively permanent” test required “relatively permanent, standing or flowing bodies of water,” and for wetlands, a “continuous surface connection” to such permanent waters.
The WOTUS rule expanded upon the “significant nexus” by listing factors to evaluate whether hydrologic features meet the “significant nexus” standard. These included whether such hydrologic feature had a “material influence” on connected waters, factoring in: (i) the distance from a water; (ii) hydrologic aspects, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow; (iii) the size, density, or number of waters that have been determined to be similarly situated; (iv) landscape position and geomorphology; and (v) climate variables, such as temperature, precipitation and snowpack. EPA explained in a Fact Sheet at the time that this WOTUS rule provided “a reasonable approach that recognizes regional and geographic differences.” Those good intentions are dashed.
Let’s look at the practical implications. The result is a near-complete removal of CWA coverage for upstream waters and wetlands physically separated from a WOTUS, in the words of Kavanaugh, by “a man-made dike or barrier, natural river berm, beach dune, or the like” At the very least this decision means that mining corporations, oil and gas operations, builders and contractors, farmers and ranchers will be able to fill in or discharge pollutants, without needing federal permits what are “non federal” ditches, gullies, potholes, arroyos, and seasonal wetlands, ephemeral streams, and isolated marshes— hydrological features that, scientists say, are crucial for maintaining the well-being of watersheds as a whole.
The Biden Administration generally and EPA and COE specifically (along with the U.S. Fish & Wildlife Service, Department of Agriculture, Department of Commerce and others), faced with the Sackett decision, are considering how to interpret the ruling and then debating and determining what should be yet another WOTUS rule under the CWA, or perhaps they will see to settle it by amending the CWA. Justice Kavanaugh highlighted the “[s]ignificant repercussions for water quality and flood control” as well as the regulatory uncertainty that the Court’s decision would create. For instance, he figured the entire National Pollutant Discharge Elimination System (NPDES) permitting system governing construction and industrial activities and municipal stormwater systems will have to be reassessed.
Experience has been that the impact of WOTUS nationwide has been salutary and, with the 2022 final WOTUS rule, was on track to be predictable for all concerned. The impact of WOTUS was different in various states, of course, depending on such things as the nature, number and competing users and uses of federal waters in those states, the presence of the locally present hydrologic features that are the WOTUS indicators, and the extent to which state, county and municipal laws and agencies may have backstopped the federal jurisdiction and EPA. The impact of the Sackett decision, therefore, will vary state-by-state. Individual states may choose to fill the federal coverage gap for wetlands protection by improving their own laws, regulations, and programs.
Fortunately, Massachusetts has its Wetlands Protection Act (WPA), the first such regulatory statute in the world, and its city and town wetland bylaws and ordinances, prime examples of the benefits of municipal environmental Home Rule. The Massachusetts Department of Environmental Protection (MassDEP) has comprehensive regulations implementing its freshwater and coastal wetlands program protecting many kinds of water bodies, their associated wetlands, the 100-year flood plain, and lands subject to the tide and coastal storms. Local conservation commissions implement the WPA in the first instance, with appeals to MassDEP. In addition, in 213 cities and towns these local boards implement local environmental legislation enacted by City Councils and Town Meetings.
As is often true with this Supreme Court, there is more going on here than merely ruling for the Sacketts on the facts of their lot and house project. Commentators across the spectrum see in the Sackett decision several distinct and very different results, ranging from glorious constitutional victory to abject defeat, and in between a Supreme Court at best in transition and at worst in turmoil. Some see Sackett as a legal victory for property rights and separation of powers. Others see it as a threat to our nation’s wetlands — and the rivers, streams, lakes and ponds they service. Some see this current Supreme Court unwilling to defer to an agency about the scope of that agency’s own power. Others see a new Court-made policy rightly fashioned for the entire United States based on a set of facts of a lot in northern Idaho.
The author sees a Supreme Court once again taking a case presenting limited facts, easily decided either way, as an opportunity instead to announce dramatic change in environmental law. It seems this Supreme Court just cannot help itself. In heated rhetoric among the justices, spilling into their nominally concurring opinions by strange bedfellows, we see the start of yet another foundational debate in the courts, in the court of public opinion, and likely in the Congress on whether and to what extent the United States should protect its wetlands which are ecologically related to the nation’s waters as part of a single system. For now, the law is not just slow in catching up to the science and not merely somewhat behind political opinion and public support. It is instead heading in a backward direction toward dismantling environmental law developed for more than fifty years.