WOTUS Woes Continue

U.S. Supreme Court Articulates New Test for Determining Whether Wetlands Are Protected Under the Clean Water Act

On May 25, the U.S. Supreme Court in Sackett v. EPA clarified the scope of the “waters of the United States” or “WOTUS” protected under the Clean Water Act – revisiting “a contentious and difficult task.” (Slip. Op. at 6). Although all the Justices joined in the judgment, they did not all agree on the reasoning behind that judgment. Therefore, this is likely not the last time that we will hear from the Supreme Court on the scope of wetlands under the Clean Water Act.

The Decision

The issue at hand was whether the Sacketts needed a Clean Water Act permit to fill the wetlands on their property. The Sacketts’ wetlands are located adjacent to an unnamed tributary feeding into a non-navigable creek, which, in turn, connects to a traditionally navigable intrastate lake. To determine whether the Sacketts’ wetlands met the definition of WOTUS, the Environmental Protection Agency applied the “significant nexus test” articulated by Justice Kennedy in Rapanos v. U.S. (547 U.S. 715, 779-81 (2006)). The Environmental Protection Agency found that the Sacketts’ wetlands were jurisdictional because, together with a large nearby wetland complex, the wetlands significantly affect the ecology of the lake.

In Sackett, the U.S. Supreme Court declined to adopt the “significant nexus” test for determining whether a wetland is protected under the Clean Water Act. The majority held that the Clean Water Act “extends only to those wetlands that are ‘as a practical matter indistinguishable from the waters of the United States.’” (Slip. Op. at 22). Concerned with both the government asserting power over private property and ensuring due process considering the Clean Water Act’s criminal penalties, the Court articulated a two-part test for determining when “adjacent wetlands” are jurisdictional:

1. First, the adjacent body of water must be “a relatively permanent body of water connected to traditional interstate navigable waters.” (Id.)
2. Second, the wetland must have a continuous surface connection with the adjacent body of water “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” (Id.)

The Court held that Sacketts’ wetlands are not jurisdictional and, therefore, they did not need a permit to fill the wetlands.

Notably, in his concurrence, Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) took issue with the majority’s new “continuous surface connection” test, stating that the test departs from the statutory text, several decades of consistent Environmental Protection Agency and Army Corps of Engineers’ practice, and the Court’s precedent.

Three Key Impacts Likely to Follow from this Decision

1. The decision narrows the scope of Clean Water Act jurisdiction. If a wetland is not jurisdictional, developers in states that apply Clean Water Act definitions to state permitting programs (e.g., Delaware and Texas) will no longer need to apply for permits to discharge pollutants into the wetlands. However, developers in states with different standards than the federal government (e.g., New York and New Jersey) will still need to keep abreast of, and comply with, state permitting requirements.
2. The Court’s decision leaves open the question of whether intermittent streams, and other waters that are tributaries of traditionally navigable waters, are WOTUS protected under the Clean Water Act.
3. The Court is continuing its movement away from deference to administrative agencies. In this case, the Court applied a “clear-statement rule” to statutory interpretation, requiring Congress to adopt “exceedingly clear language” when it exercises power “over private property.” (Slip Op. at 23) “Clear-statement” type rules appear to be gaining a foothold in the Court. (See, e.g., West Virginia v. EPA,­ 142 U.S. 2587 (2022), adopting the “major questions doctrine.”) The complexity and broad nature of environmental laws may make it more likely that such rules of interpretation are used to challenge these laws in the future.