U.S. Supreme Court Removes Federal Clean Water Act Protections and Permitting Requirements from Most U.S. Wetlands

On May 25, 2023, the U.S. Supreme Court announced a five-Justice Majority decision in the case of Sackett v. Environmental Protection Agency. Justice Alito, writing for the majority, stated that the Clean Water Act only applies to “‘wetlands with a continuous surface connection to the bodies that are ‘waters of the United States’ in their own right,’ so that they are ‘indistinguishable’ from those waters.”  

The Majority opinion ended the “significant nexus” test for jurisdictional waters and wetlands from Justice Kennedy’s plurality opinion in the 2006 decision Rapanos v. United States.  Justice Alito and the majority largely adopted a narrower test proposed in Justice Scalia’s four-justice opinion in Rapanos test to determine the meaning of “the waters of the United States” that are protected by the federal Clean Water Act. The two prong-test to determine jurisdiction over an adjacent wetland requires (1) “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 (2) “that the wetland has a continuous surface connection with water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” or that it is “indistinguishable” from the water. 

All nine justices agreed that the Sackett’s property at issue in the case was not subject to federal Clean Water Act jurisdiction and permitting. However, Justices Kagan, Sotomayor, Jackson, and Kavanaugh all asserted that the narrow test put forward by the majority went beyond the intention of the Clean Water Act and would therefore not protect a significant number of wetlands. Justices Thomas and Gorsuch published a concurring opinion agreeing with the test and conclusion, but felt that the Majority opinion did not go far enough to define “navigable” and “of the United States.” 

Justices Kagan, Sotomayor and Jackson’s concurrence disagreed with the two-part test put forward by the Majority. Rather, the Justices argued that the longstanding application of the Clean Water Act permits the U.S EPA and U.S. Army Corps of Engineers to have jurisdiction over the wetlands that are “(i) contiguous to or bordering a covered water, or (ii) separated from a covered water only by a manmade dike or barrier, natural river berm, beach dune, or the like.”  The concurrence goes on to find that the Majority’s conclusion removes protections for wetlands under category (ii). 

Justice Kavanaugh also wrote a concurrence that was joined by Justices Kagan, Sotomayor, and Jackson. Justice Kavanaugh’s opinion argued that wetlands that are adjacent to waters covered by the Clean Water Act are also covered and protected. Justice Kavanaugh agreed with the decision not to adopt the significant nexus test but asserted the test created by the Majority departs from the Clean Water Act’s text, which refers to “adjacent wetlands.”  Justice Kavanaugh’s opinion argued that the Clean Water Act does not require the continuous surface connection that the majority decision required, as put forward by the Majority. Specifically, Justice Kavanaugh would have held that the “term ‘adjacent’ is broader than ‘adjoining’ and does not require that the two objects actually touch.”

Implications of the Court’s Decision
The Court’s decision ends federal Clean Water Act protections and permitting requirements for all wetlands in the United States that either (1) lack a continuous surface water connection to a body of water that is subject to Clean Water Act jurisdiction, or (2) are “distinguishable” from the adjacent water body.  According to a 2017 analysis of the Trump Administration’s proposed definition of Waters of the United States by the Environmental Protection Agency and Army Corps of Engineers, the first exclusion would remove 51% of the nation’s wetlands from federal Clean Water Act jurisdiction.  It is not clear how the agencies and the courts will apply the second, and new, “indistinguishable” standard in the coming months and years, but it will certainly remove some amount of additional wetlands from federal jurisdiction.  Wetlands no longer under federal Clean Water Act jurisdiction are no longer subject to federal permit requirements, protections, or mitigation requirements of Section 404 of the Clean Water Act, and no longer require Section 401 state water quality certifications, if they are drained or filled.  They are also no longer protected against or subject to permit requirements for pollution discharges into them under Section 402 of the Clean Water Act.  

Some states, such as California, have asserted state protections and permitting requirements for wetlands no longer protected by the Clean Water Act.  In many other states across the country, the decision removes all protections and permitting requirements for draining and filling wetlands that are “distinguishable” from water bodies under federal jurisdiction.   

Background on Sackett v. EPA
The case arose out of a decades-long dispute over whether the Sackett’s property is subject to federal permitting requirements under the Clean Water Act. The Sacketts previously were before the U.S. Supreme Court in 2012, when the Court ruled that an Army Corps of Engineers jurisdictional determination is a final agency action that an applicant can challenge in court. In the case decided May 25, 2023, the Sacketts were back before the Supreme Court to ask the Court to rule on whether Ninth Circuit properly held that the Sackett’s property was subject to Clean Water Act jurisdiction and whether the Clean Water Act covers adjacent wetlands with a significant nexus to traditional navigable waters.

Disclaimer: BBK legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.