Redefining Water (Again): Sackett v. Environmental Protection Agency

June 2, 2023

At the close of last year, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army Corps of Engineers announced a final rule defining “waters of the United States” for purposes of enforcing the Clean Water Act (CWA). The definition was the latest in a string of agency decisions and court rulings that had alternately broadened and narrowed the definition of “waters of the United States” since Congress passed the legislation in 1972. Hartman King PC discussed the decision in a previous legal update. Now, the Supreme Court just issued a ruling in Sackett v. Environmental Protection Agency on May 25, 2023, that further refines the definition. The Sackett decision is a significant victory for landowners and a setback for the EPA.

The decision will make it more difficult for the EPA to regulate wetlands on private property and will likely lead to more litigation over the Clean Water Act’s (CWA) scope. For example, the definition of “waters of the United States” is vital in citizen suits involving the CWA because it determines whether a person or group has standing to sue. Put plainly, if an action does not affect a “water of the United States,” a citizen cannot sue for pollution protection under the CWA.

Case Background

Michael and Chantell Sackett purchased a residential lot near Priest Lake, Idaho, in 2004 and wanted to build a home there. The Sacketts began backfilling their property with sand and gravel. However, shortly after they began, the EPA informed them they could not build on their lot. According to the EPA, the property contained wetlands within the CWA’s jurisdiction because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. Construction on the site would violate the CWA, which prohibits discharging pollutants into “the waters of the United States” under 33 U.S.C. 1362(7). The EPA ordered the Sacketts to restore the site to its natural state and threatened penalties of over $40,000 per day for noncompliance.

Procedural History

The Sacketts sued the EPA, arguing that the agency had no authority to regulate their activities. After extensive litigation lasting well over a decade (including a previous trip to the Supreme Court), the United States District Court for the District of Idaho ruled against the Sacketts, and the Ninth Circuit affirmed the judgment in favor of the EPA.

Precedent: Rapanos v. United States, 547 U.S. 715 (2006)

The most instructive existing Supreme Court opinion on “waters of the United States” was Rapanos v. United States. Like Sackett, Rapanos dealt with the backfilling of wetlands near ditches that eventually emptied into traditional navigable waters. Although the Court ruled in favor of the petitioners in Rapanos, a majority disagreed on the appropriate test. Justice Antonin Scalia articulated a test where wetlands only merited protection under the CWA when they shared a “continuous surface connection” to traditional navigable waters (e.g., oceans, streams, rivers, and lakes). While concurring with the result, Justice Anthony Kennedy offered a contrasting test where a surface connection was unnecessary if the wetland shared a “significant nexus” with a protected water body. To Kennedy, the critical question was not whether a wetland shared a surface-water connection but whether polluting or destroying a wetland would affect the integrity of the aquatic system, including the traditional understanding of navigable waters.

The Sackett v. EPA decision

In Sackett, the Supreme Court ruled 9-0 that the EPA had exceeded its authority and interpreted the CWA too broadly. However, the Court split 5-4 on the appropriate test, with a slim majority preferring the “continuous surface connection” initially articulated by Justice Scalia in Rapanos. Here is a quick breakdown of the decision:

Opinion (Delivered by Justice Alito, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett).

The majority held the CWA extends only to wetlands indistinguishable from waters of the United States. To assert jurisdiction over adjacent wetlands, an agency must show: 1) that the adjacent body of water is relatively permanent and connected to traditional interstate navigable waters, and 2) the wetland has a continuous surface connection with that water, “making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.”

Concurrence (Delivered by Justice Kavanaugh, joined by Justices Sotomayor, Kagan, and Jackson).

Justice Kavanaugh’s concurrence agreed with the Court’s reversal of the Ninth Circuit, its rejection of Justice Kennedy’s “significant nexus” test, and the bottom line that the CWA did not extend to the Sackett’s property. However, he found the “continuous surface connection” test departed from the statutory text and unnecessarily narrowed the definition of “adjacent” to mean “adjoining.” Justice Kavanaugh proposed that “The Act covers adjacent wetlands, and a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”

Concurrence (Delivered by Justice Kagan, joined by Justices Sotomayor and Jackson).

Like Justice Kavanaugh, Justice Kagan concurred with the result and urged the Court to “stick to the text.” Justice Kagan found the majority unnecessarily narrowed the statute’s scope since “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby.” The concurrence cautioned the majority’s opinion would deny CWA jurisdiction to many wetlands clearly adjacent to covered waters.

Concurrence (Delivered by Justice Thomas, joined by Justice Gorsuch).

Justice Thomas’ concurrence noted the Court had focused on “waters” but did not determine the extent of the CWA’s other jurisdictional terms, namely “navigable” and “of the United States.” Justice Thomas would further narrow the CWA’s reach only to waters that could reasonably be a highway of interstate or foreign commerce. Under this concurrence, the Sacketts’ wetlands would not be “waters” for three reasons: 1) they lack a continuous surface connection with traditional navigable waters, 2) the ditch across the street is not, and could not be, a highway of interstate commerce, and 3) Priest Lake is purely intrastate.

Implications

Ultimately, the Sackett decision is a 5-4 majority decision that provides a clear standard restricting an agency’s ability to regulate certain wetlands. Specifically, the CWA does not extend to wetlands lacking a “continuous surface connection” with traditional “waters of the United States.” The decision is a victory for those fighting an expansive interpretation of the CWA and a setback for some groups who believe it will weaken clean water protections in wetlands. It could also make citizen suits more difficult since the CWA gives citizens the right to sue polluters who violate the law, but the Sackett decision narrows the law’s reach.

#CWA; #EnforcementDefense; #EnvironmentalAttorney; #EnvironmentalLaw; #EnvironmentalLawAttorney; #EnvironmentalProtectionAgency; #EPA; #LandUseAttorney; #LandUseLaw; #LandUseLawAttorney; #NaturalResources; #NaturalResourcesAttorney; #NaturalResourcesLaw; #NaturalResourcesLawAttorney; #NavigableWaters; #Rapanos; #RegulatoryAttorney; #RegulatoryLaw; #Sackett; #SCOTUS; #TopEnvironmentalLawyer; #Wetlands; #WOTUS