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The Clean Water Act is Substantially Restricted by the Supreme Court’s Decision in Sackett v. EPA
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The Clean Water Act is Substantially Restricted by the Supreme Court’s Decision in Sackett v. EPA

January 23, 2024 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 5 minutes


A ruling in 2023 by the U.S. Supreme Court (SCOTUS) in Sackett v. Environmental Protection Agency (the “EPA”) has enormous ramifications for the health of the nation’s waterways. In fact, it would not be hyperbole to call Sackett the most important water-related Supreme Court decision in a generation. A majority of the justices used the case to dramatically weaken the Clean Water Act (the “CWA”) what wetlands deserve protection from pollution and destruction.

Which waterbodies are considered waters of the United States (“WOTUS”) determines what receives CWA protection. The EPA administers much of the CWA. The Army Corps of Engineers issues Section 404 Permits for discharge of dredge and fill material into navigable water. The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” These permits can be critical in protecting wetlands, but which wetlands are protected depends on the definition of WOTUS.

Background

Idaho landowners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The EPA informed the Sacketts that their property contained wetlands and that their backfilling violated the CWA. Specifically, the CWA prohibits discharging pollutants into WOTUS without a permit, 33 U.S.C. Section 1362(7). The Sacketts were given the choice of risking daily fines or restoring the site to its prior condition. The EPA classified the wetlands on the Sacketts’ lot as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA maintained that the wetlands on the Sackett property were “adjacent” to an “unnamed tributary” on the other side of a 30-foot road. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the EPA regarded as “similarly situated.” The Sacketts sued the EPA by arguing that the EPA’s interpretation of the CWA was incorrect. Both the U.S. District Court and the Court of Appeals for the Ninth Circuit found for the EPA by holding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters, and the Sackett’s property met this standard. The Sacketts appealed to the Supreme Court.

The Sackett’s appeal set up a potential resolution for two (2) standards currently in practice for determining when the EPA has jurisdiction over wetlands: the first standard was the “significant nexus” standard, which the ninth Circuit used in the Sackett’s appeal. The second standard was the “relatively permanent” standard. This standard was a two-step test. The first step is a relatively permanent body of water connected to traditional interstate navigable waters; and the 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. Rapanos v. United States, 547 U.S. 715 (2006).

SCOTUS Opinion

The Supreme Court ruled in a 9-0 decision that the EPA did not have jurisdiction over the Sackett’s property, although the justices differed on which standard to apply in their concurring decisions. Justice Alito authored the majority opinion and was joined by justices Thomas, Gorsuch, Barrett, and Roberts. The majority essentially adopted the significant nexus test from Rapanos to determine when wetlands are part of covered waters. The opinion analyzes the statutory text to conclude that the CWA “reflects Congress’s assumption that certain ‘adjacent’ wetlands are part of ‘waters of the United States.'” The main question was how to determine what waters are “adjacent” to a traditionally navigable water. The court agreed with the formulation of the significant nexus test, holding that to assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes…water[s] 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.'” The court provided that the CWA extends to only wetlands that are as a practical matter indistinguishable from waters of the United States. The court did, however, “acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” This exception appears quite limited: It is not enough that the wetland is “neighboring” to covered waters – it must be connected.

The court further held that it requires Congress “to enact 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.” Noting that the CWA has an express policy of preserving state primacy over water, the court stated that it requires “a clear statement from Congress when determining the scope of the waters of the United States.'” The significant nexus test failed this test when compared to the basic definition of “navigable waters.” In short, the Court is requiring the policy of the EPA to be made in the political process of legislation. Congress can have the policy it wants to have, but it has to be clear and definite and not left solely to the EPA to work out its authority.

Conclusion

With its decision in Sackett, the Court is seeking to end any uncertainty in determining WOTUS, which has been a significant problem for years. A clear test for determining the jurisdiction of the EPA has been provided, while any expansion of the CWA has been reigned in, for now. This decision will no doubt have dramatic impacts on development of isolated waters that may have been determined to be protected wetlands prior to the decision. The only foreseeable means to expand the EPA’s authority moving forward will have to derive from Congress.

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