On May 25, 2023—17 years after the Rapanos v. United States decision1—the U.S. Supreme Court decided Sackett v. EPA, settling the long-unresolved question over the proper test to determine whether a wetland constitutes “waters of the United States” (WOTUS) subject to regulation under the Clean Water Act (CWA). After Rapanos, in which no majority opinion was reached, lower courts and federal agencies were left to interpret and apply a plurality opinion and a concurrence, leading to inconsistencies in how wetlands were treated under the CWA. In Sackett, a five-member majority held that the CWA “extends to only those wetlands with a continuous surface connection” to a WOTUS such that they are indistinguishable from those waters.2 The court held unanimously that the wetlands located on the Sacketts’ property are not classified as WOTUS under the CWA and, therefore, the Sacketts did not require a permit from the Army Corps of Engineers (Corps) before filling them with rock and soil.
Pre-Sackett Circuit Split Over Wetlands Regulation Under the CWA
The 2006 Rapanos decision resulted in two competing standards for whether wetlands were jurisdictional: (1) the “relatively permanent” flow standard, authored by Justice Scalia for a plurality of the Supreme Court, and (2) the “significant nexus” standard articulated in Justice Kennedy’s concurrence.3 Over the ensuing years, lower courts interpreted federal jurisdiction in divergent ways based on these two tests, resulting in a circuit split:
Breaking Down the Circuit Courts’ Post-Rapanos, Pre-Sackett WOTUS Standards
Significant nexus (Kennedy concurrence)
Fourth, Seventh, Ninth, and Eleventh Circuits4
Significant nexus (Kennedy concurrence) and relatively permanent (Scalia plurality)
First, Third, Sixth,5 and Eighth Circuits
Significant nexus (Kennedy concurrence), relatively permanent (Scalia plurality), and Justice Stevens’ dissent
Not yet addressed
Second,7 Tenth, and D.C. Circuits
The Dispute in Sackett
In 2007, the Sacketts began filling their 0.63-acre lot in northwestern Idaho with sand and gravel in preparation for building a home. The property is 300 feet from Priest Lake, an intrastate body of water, and across the road from Kalispell Bay Fen, a large wetlands complex that drains into an unnamed tributary that feeds into Priest Lake. Prior to human development, the entire area (including the property) was part of the Kalispell Bay Fen. Though not apparent aboveground, the U.S. Environmental Protection Agency (EPA) found evidence of subsurface flow between the property and Kalispell Bay Fen.
In response to a complaint, the EPA investigated and concluded that there were wetlands on the property. EPA issued an administrative compliance order for violating the CWA by discharging fill material into wetlands without a permit. EPA directed the Sacketts to remove fill material and restore the wetlands.
Litigation ensued when the Sacketts challenged EPA’s order. The district court dismissed the Sacketts’ suit on procedural grounds, holding that the EPA’s administrative compliance order was not a final agency action, which the Ninth Circuit affirmed.8 In Sackett v. EPA (Sackett I), the Supreme Court reversed, holding that the Sacketts could bring their suit under the Administrative Procedure Act.9
On remand, the Sacketts again challenged EPA’s WOTUS interpretation underlying the administrative compliance order. The district court granted summary judgment for the EPA.10 The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands under the significant nexus test and that wetlands on the Sacketts’ lot satisfied that standard.11 Before the Supreme Court for the second time, the Sacketts argued that Justice Scalia’s narrower “relatively permanent” flow standard from Rapanos should control and, under that standard, their property was not subject to the CWA.
The Sackett II Decision
In a 5-4 majority opinion (Sackett II), Justice Samuel Alito, joined by Chief Justice Roberts and Associate Justices Thomas, Gorsuch and Barrett, held 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.”12 The decision concludes that the wetlands present on the Sackett’s property are not WOTUS because they are “distinguishable from any possibly covered waters.”13
The majority opinion derived its conclusion from two statutory provisions, sections 502(7) and 404(g)(1) of the CWA, 33 U.S.C. §§ 1362(7) and 1344(g)(1). Section 1362(7) defines “navigable waters” as WOTUS, and section 1344(g)(1) authorizes states to administer permit programs for discharging dredge and fill material into navigable waters “including wetlands adjacent thereto.” The majority opinion primarily focused on the definition of “waters” in section 1362(7). It found that “waters” means navigable waters and more broadly “bodies of open water.”14 However, the court recognized that “statutory context shows that some wetlands qualify” as WOTUS.15 The majority read section 1344(g)(1) to mean that certain “adjacent” wetlands are WOTUS. In doing so, it rejected EPA’s argument that the sections must be read together to expansively define WOTUS. Instead, the majority concluded that because section 1344(g)(1) is not the operative provision that “defines the Act’s reach,” it cannot define the scope of wetlands regulated by the CWA.16
To determine whether a wetland is indeed a WOTUS, the Supreme Court looked to Justice Scalia’s plurality opinion in Rapanos, which read section 1362(7) to include wetlands that are indistinguishable from a WOTUS—i.e., where they 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.”17 The court established a two-part test for whether wetlands are regulated by the CWA: first, a party must establish that an adjacent water is a WOTUS in its own right, and then demonstrate that the wetland has a continuous surface connection to the adjacent, WOTUS water.18
The majority dismissed Justice Kennedy’s “significant nexus” test (and in effect, the EPA’s reliance thereon in the 2023 WOTUS Rule, as discussed further below), as being inconsistent with the CWA’s text and structure, and principles of statutory interpretation.19 The majority opinion emphasized the need for clear language from Congress for federal regulation to regulate areas of traditional state authority, such as water.20 The majority explained that language of section 1362(7) was insufficient to support the “significant nexus” standard because of the breadth of waters encompassed under that standard.21 The majority also expressed a need for clarity because landowners are subject to severe criminal and civil penalties for violations of the CWA and the significant nexus test provides little notice or guidance to landowners.22 The majority further dismissed the rest of the EPA’s arguments, including that adjacent wetlands are included by Congress’ adoption of section 1344(g)(1) in 1977 (the position adopted by Justice Kavanaugh in his concurrence, described below).23 The court further found that “adjacent” does not include non-WOTUS wetlands, section 1344(g)(1) did not amend the definition of “navigable waters,” and that EPA’s argument that Congress ratified its interpretation of adjacent wetlands being WOTUS when it adopted section 1344(g)(1) in 1977 because EPA failed to provide “overwhelming evidence” of congressional acquiescence to this interpretation, given that Congress chose not to amend section 1362(7).24
The Sackett II Concurring Opinions
While all justices agreed on the judgment, they diverged on the scope of the CWA in three concurrences. Two justices found the majority opinion’s test to be too broad in its interpretation of navigable waters, while four justices found the majority’s opinion to be too narrow.
- Justice Thomas, joined by Justice Gorsuch, would have restricted the CWA even further by limiting it to only those waters used “as highways of interstate or foreign commerce.”25 Justice Thomas explained that the federal government’s Commerce Clause authority underlying the CWA must be interpreted through its historical authority over navigation, which was “narrow but deep.”26
- Justice Kavanaugh, joined by Justices Sotomayor, Kagan and Jackson, agreed with the majority’s refusal to adopt the significant nexus test, but disagreed with the majority’s new test.27 Justice Kavanaugh focused on the meaning of the word “adjacent” in section 1344(g)(1), along with the legislative history behind the CWA amendment that added that section. Using the word’s common definition, Justice Kavanagh would have held that wetlands that were “adjacent” to the WOTUS, meaning “lying near or close to, neighboring, or not widely separated,” would be included as covered waters, instead of requiring a continuous surface connection as Justice Alito did.28 Justice Kavanagh noted that the majority’s test rewrote that statutory language to require wetlands to be “adjoining” WOTUS, instead of “adjacent.” Justice Kavanaugh argued that the majority’s test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” and it “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.”29
- In a separate concurring opinion, Justice Kagan, joined by Justices Sotomayor and Jackson, criticized the majority for effectively appointing itself as the “national decision-maker on environmental policy,” and referenced a similar instance of what it considered judicial overreach in the court’s decision last year to limit the scope of the Clean Air Act in West Virginia v. EPA, 597 U.S. __ (2022).30
Assessing the Impacts of Sackett II
The Sackett II decision narrows those wetlands that are considered WOTUS, reduces the federal government’s authority over certain water bodies and creates permitting uncertainty at the state level. Key implications include the following:
- It’s Up to States and Tribes. Commentators have estimated that the Sackett II decision could remove CWA jurisdiction from over 50% of the nation’s wetlands, although we are not aware of any estimate of existing CWA permits or permit applications that may be implicated by the decision.31 As the scope of federal jurisdiction narrows, the Sackett II decision puts the onus on states and tribes to establish the level of wetlands protection they desire. Nineteen states already have fairly comprehensive laws to regulate non-federal wetlands and streams, while several others have established limited mechanisms to protect some non-WOTUS wetlands.32 In nearly half the states, however, the scope of state water quality programs hinge primarily or exclusively on the federal WOTUS definition.33 And 27 states have laws that prevent the state from enacting more stringent regulations.34
- Some states are in the process of developing more comprehensive regulations. For example, Colorado (which previously challenged the Trump Navigable Waters Protection Rule) recently published a draft enforcement policy for “unpermitted discharges of dredged and fill material,” under which project proponents must notify the state of future projects even if they were not regulated pre-Sackett II (the state is “consider[ing] developing a dredge and fill regulatory program”) and must abide by the conditions and best management practices under the relevant pre-Sackett II nationwide or general permit.
- Other states with existing, comprehensive laws may experience strain on existing resources. The California State Water Resources Control Board affirmed in a press release that the “ruling effectively will require California to increasingly rely on its own regulatory wetlands protection programs,” including the Porter-Cologne Water Quality Control Act. While states such as California may have existing authority and structures to regulate dredge and fill, it remains to be seen they are adequately resourced.
Ultimately, it remains to be seen how states and tribes react and allocate resources in response to the wetlands rule set forth in SackettII. We consider it likely that states and tribes will continue to look to EPA and the Corps for federal guidance in the form of things such as approved jurisdictional determinations.35
- Future Litigation Over “Temporary” Breaks in Surface Connection. There will be implementation problems, and likely litigation, centered on interpretation of what constitutes a “continuous surface connection.” The Sackett II majority wanted to create a relatively straightforward test, with jurisdiction extending only to “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.’”36 Yet in some parts of the country, particularly the arid West, a surface connection may be broken based on natural or unpredictable climatic conditions. The majority opinion acknowledges this prospect, stating that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”37 Justice Kavanaugh’s concurrence expands on this issue and poses several practical questions that administrators and project proponents will soon confront:
“How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How ‘temporary’ do ‘interruptions in surface connection’ have to be for wetlands to still be covered? . . . How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert?”38
Other questions remain. What happens with the ever-increasing long-term droughts across the United States and continued aridification of the West? Does a three-year drought disqualify a WOTUS? Does an excessively wet year reinvigorate protections? While the majority’s intent was to create a clear test, its contours remain undefined. Parsing when an interruption in surface connection is more than temporary will likely prove difficult, creating further disputes over jurisdictional reach.
- Citizen Suit Litigation Likely to Increase. As concerned citizens and interested groups grapple with the revised scope of the CWA and what wetlands may fall under the Sackett II definition, it is likely that citizen suit litigation under CWA section 505 will challenge activities taking place in wetlands. Indeed, several large environmental organizations have already committed to fighting the ruling by litigating its implementation.
- Revisions (Again) to the WOTUS Rule. Earlier this year, the Biden administration published a final rule (2023 WOTUS Rule) revising the definition of WOTUS that went into effect on March 20, 2023 (for more discussion, see Brownstein’s What’s in a Name?: Biden Administration Publishes Final WOTUS Rule.) Due to challenges in various courts, the rule is currently effective in less than half the states. The Biden administration intended the rule to establish a “durable” definition of WOTUS and incorporated aspects of both Justice Kennedy’s significant nexus standard and Justice Scalia’s relatively permanent standard. But because Sackett II expressly rejected the significant nexus approach, that portion of the rule now appears void. EPA and the Corps will likely vacate the rule and promulgate a new one or a court will likely compel them to do so. Any future WOTUS rule must feature factors that implement the “continuous surface connection” standard, but future challenges of that rule are likely.
- Section 404 Dredge-and-Fill Permitting Confusion. The Corps’ section 404 permits will also likely be limited by the ruling, as 404 permits are only required for discharge and fill material into WOTUS. While the full impacts to the Corps are unknown at this time, the Corps issued a statement on May 26 stating that it will “interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett” and that the agencies are continuing to review the decision to “determine next steps.”39 As of June 2, the Corps had placed a hold on key wetlands determinations pending the release of guidance explaining the impact of the Sackett ruling.40 We expect that some projects will now fall outside of the new WOTUS definition, rendering permitting requirements unclear. Those with ongoing projects should continue to stay up to date on this issue and inquire as to the status of their permits.
- Endangered Species Act Implications. A project that requires a CWA section 404 permit qualifies as a “federal action.” If that project also implicates a listed endangered species, it can proceed with consultation under Section 7 of the Endangered Species Act (ESA). For non-federal actions that implicate a listed species, however, consultation proceeds under Section 10, which is a permit based on a conservation plan under a different legal standard that can be a longer, more difficult process. If, as expected, CWA jurisdiction over wetlands is substantially reduced with a corresponding reduction in the scope of section 404 permitting, we expect that projects that require consultation under the ESA will now more frequently have to proceed under Section 10, which may impact permitting timelines.
- Potential Amendments to the CWA? The White House and the EPA issued statements critical of the implications of the Sackett II The Biden administration criticized the decision and claimed it will “take our country backwards” by putting the nations “wetlands—and the rivers, streams, lakes, and ponds connected to them—at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on.”41 EPA Administrator Michael S. Regan voiced his disappointment in the decision and stated that a common sense, science-based definition of WOTUS is essential.42 These statements suggest that, if the Democrats take control of the House in 2024 and maintain the Senate and the presidency, they may pursue amendments to the CWA to cover additional wetlands not considered WOTUS under Sackett II.
For more information and guidance in light of the Sackett II decision, please contact Brownstein.
1 Rapanos v. United States, 547 U. S. 715 (2006).
2 Sackett v. EPA, 598 U.S. __, No. 21-454, slip. op. at 27 (May 25, 2023) (Alito, J.) (“Sackett II slip op.”).
3 For more discussion of these standards, see Brownstein’s What’s in a Name?: Biden Administration Publishes Final WOTUS Rule.
4 The Fourth Circuit has not officially adopted a position on Rapanos, and arguably the Ninth Circuit would entertain an argument that jurisdiction would also be proper under the Scalia plurality.
5 The Sixth Circuit has not officially taken a position on Rapanos, but it was critical of decisions that applied Marks v. United States, 430 U.S. 188 (1977), to determine that Kennedy’s concurrence is the narrowest possible grounds.
6 The Fifth Circuit has not officially taken a position, and its one decision in the criminal context showed that jurisdiction would have been proper under all three tests.
7SeeZdziebloski v. Town of East Greenbush, 2017 WL 1968672 at *5 (N.D.N.Y. May 17, 2017) (finding that the plaintiff did not submit admissible evidence to prove jurisdiction under either the significant nexus standard or relatively permanent standard).
8Sackett v. EPA, 566 U. S. 120, 132 (2012).
10 Sackett v. EPA, No. 2:08-CV-00185-EJL, 2019 WL 13026870 (D. Idaho, Mar. 31, 2019).
11Sackett v. EPA, 8 F.4th 1075, 1091–93 (9th Cir. 2021).
12Sackett II slip op. at 27.
13Id. at 27–28.
14Sackett II slip op. at 15–16.
15 Id. at 18.
16 Id. at 19.
17 Id. at 21, quoting Rapanos, 547 U.S. at 742.
18 Id. at 22.
19 Id. at 22–23.
20 Id. at 23.
22 Id. at 24–25.
23 Id. at 25–27; see id. at 6 (Kavanaugh, J., concurring).
24 Id. at 25–27.
25 Id. at 6 (Thomas, J., concurring).
26 Id. at 8 (Thomas, J., concurring).
27 Id. at 2-3 (Kavanaugh, J., concurring).
28 Id.at 4 (Kavanaugh, J., concurring).
29 Id. at 2 (Kavanaugh, J., concurring).
30 Id. at 6 (Kagan, J., concurring).
31 Timothy Puko and Robert Barnes, How Supreme Court’s EPA ruling will affect U.S. wetlands, clean water (May 25, 2023 at 4:57 PM), https://www.washingtonpost.com/climate-environment/2023/05/25/supreme-court-epa-wetlands/.
32 James McElfish, State Protection of Non Federal Waters: Turbidity Continues, 52 Envt’l L. R. 10679 (2022), available at https://www.eli.org/sites/default/files/files-pdf/52.10679.pdf.
35 Approved Jurisdictional Determinations are a process used by the Corps to make a definitive, official determination whether aquatic resources in the review area are or are not jurisdictional. More information can be found here: https://www.nae.usace.army.mil/Portals/74/docs/regulatory/Outreach/MA-NWPR-JurisdictionalDetermination.pdf.
36 Sackett II slip op. at 27.
37 Id. at 22.
38 Id. at 13-14 (Kavanaugh, J., concurring).
39 U.S. Army Corps of Engineers, Supreme Court Ruling in Sackett v. Environmental Protection Agency (May 26, 2023), https://www.usace.army.mil/Media/Announcements/Article/3409141/26-may-2023-supreme-court-ruling-in-sackett-v-environmental-protection-agency/.
40 E.A. Crunden, Greenwire, Post-Sackett, chaos erupts for wetlands oversight (Jun. 2, 2023), https://subscriber.politicopro.com/article/eenews/2023/06/02/post-sackett-chaos-erupts-for-wetlands-oversight-00099762.
41 White House, Statement from President Joe Biden on Supreme Court Decision in Sackett v. EPA (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/statement-from-president-joe-biden-on-supreme-court-decision-in-sackett-v-epa/.
42 EPA Press Office, STATEMENT ON SUPREME COURT DECISION IN SACKETT v. EPA (May 25, 2023), https://www.epa.gov/newsreleases/statement-supreme-court-decision-sackett-v-epa.
This document is intended to provide you with general information regarding Sackett v. EPA. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.