U.S. Supreme Court Significantly Reduces Federal Waters Jurisdiction

by Jessie Spears and Nathan Vassar

Nearly two years after its decision in County of Maui v. Hawaii Wildlife Fund regarding “waters of the United States” (“WOTUS”), the United States Supreme Court issued a decision curtailing the reach of federal WOTUS jurisdiction, which will have major impacts to Clean Water Act (“CWA”) federal permitting, mitigation, and enforcement. Sackett v. EPA, No. 21-454 (U.S.) (May 25, 2023); see Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462 (2020). In Sackett v. Environmental Protection Agency (“EPA”), the Court rejected the 2006 Justice Kennedy plurality-drafted “significant nexus” test in Rapanos v. United States, 574 U.S. 715 (2006) that EPA and the U.S. Army Corps of Engineers (“USACE”) used in prior jurisdictional waters determinations. The Court instead adopted as the sole requirement—at least for wetlands—that water bodies must be “relatively permanent” or otherwise actually connected to a “relatively permanent” water source to count as federally jurisdictional waters similar to Justice Scalia’s approach in Rapanos, an approach that had also been previously used in jurisdictional waters determinations post-Rapanos. 574 U.S. 715 (2006). Mere proximity to a relatively permanent water body is not enough to confer federal jurisdiction, meaning that isolated wetlands, at issue in the Sackett case, are not considered WOTUS.

The definition of WOTUS has been the source of various debates, appeals, and rulemakings since the CWA was amended in 1972. The CWA establishes federal jurisdiction over “navigable waters,” defined as the “waters of the United States.” CWA § 502(7). Four Supreme Court decisions have attempted to clarify the definition of WOTUS. In 1985, in United States v. Riverside Bayview Homes, Inc., the Court deferred to USACE’s broad assertion of jurisdiction over wetlands adjacent to a traditional navigable water, stating that adjacent wetlands may be regulated under the CWA because they are ‘‘inseparably bound up’’ with navigable waters and often have ‘‘significant effects on water quality and the aquatic ecosystem’’ in those waters. 474 U.S. 121 (1985). In 2001, the Court again addressed WOTUS and held that the use of “nonnavigable, isolated, intrastate waters” by migratory birds was not by itself a sufficient basis for the exercise of federal authority under the CWA. Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps Eng’rs, 531 U.S. 159, 172 (2001).

More recently, environmental groups advanced rules under both the Obama and Biden Administrations that relied upon hydrologic connections between water bodies, even if such connections were attenuated and sometimes interrupted. This “significant nexus” test was approved by a plurality opinion. Rapanos, 574 U.S. 715. Post-Rapanos, EPA and USACE claimed broad authority to regulate all wetlands with a “significant nexus” to traditionally navigable waters, which often encompassed wetlands without an apparent surface connection to WOTUS. While both the Trump and the Biden Administrations have attempted to promulgate new definitions of WOTUS, the Sackett opinion carves out certain wetlands from the regulatory purview of EPA and USACE and effectively renders the Biden-proposed EPA rule moot (despite the recent request by EPA to revive the rule).

In the Sackett case, Michael and Chantell Sackett owned a residential lot near Priest Lake in Idaho and began to fill their lot with dirt and gravel to prepare for construction. In 2007, EPA halted the work (responding to a neighbor’s complaint) and threatened penalties of over $40,000 per day for failure to comply. EPA claimed that the Sacketts’ lot contained a federally protected wetland and ordered the couple to remove the gravel and cease any further construction without a permit. The Sacketts sued, arguing that the wetland was not a protected “water of the United States” because dry land separated the wetland from other bodies of water, and thus their lot was not subject to EPA regulation.

The Sackett opinion addresses some of the uncertainty surrounding on-the-periphery waters that federal regulators might seek to regulate. The CWA applies to adjacent wetlands, and the Court found that a wetland is “adjacent” to a jurisdictional water if the wetland is contiguous to or bordering a covered water. However, the Court stated that isolated wetlands (i.e., wetlands separated from a covered water by a man-made dike or barrier, natural river berm, beach dune, or the like) are not covered under the CWA based on the 5-4 majority opinion. The Sackett opinion limits federal regulation of wetlands and finds that the CWA “extends to only wetlands that are as a practical matter indistinguishable from waters of the United States.” The Court also noted that relatively permanent, and thus covered waters, may experience “temporary interruptions in surface connection[s]. . . because of phenomena like low tides or dry spells.”

Federal agency responses are certainly in development; however, the Sackett decision effectively reclassifies thousands of acres of wetlands that were previously subject to the CWA and will downsize wetland footprints tied to permitting, mitigation, and enforcement. The decision also undercuts the Biden Administration’s most recent WOTUS rulemaking that included aspects of the hydrological connection approach now rejected by the Court.

Jessie Spears is an Associate in the Firm’s Water and Compliance and Enforcement Practice Groups. Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact Jessie at 512.322.5815 or jspears@lglawfirm.com, or Nathan at 512.322.5867 or nvassar@lglawfirm.com.