In Sackett v. Environmental Protection Agency, the Supreme Court issued a unanimous ruling severely limiting the federal government’s jurisdiction over wetlands and tributaries. The decision undermines the Biden Administration’s newly revised definition of “Waters of the United States” (WOTUS).
- The 1972 amendments to the Clean Water Act (CWA or the Act) established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)). The CWA does not define WOTUS, however, and instead authorizes the Department of the Army Corps of Engineers (the Corps), Department of Defense (DOD), and Environmental Protection Agency (EPA) (collectively the Agencies) to do so in regulations.
- In its May 25, 2023, decision, the Supreme Court adopted the plurality view in Rapanos v. United States, 547 U.S. 715, that wetlands are WOTUS only if 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.”
- The Sackett v. EPA decision limits the definition of WOTUS to relatively permanent bodies of navigable waters, frustrating the Biden Administration’s effort via rulemaking to broaden the definition to include less-permanent wetlands.
The Bottom Line
The Court’s decision is likely to have far-reaching effects, with ramifications for water quality standards and total maximum daily loads (TMDLs), oil spill programs, state and tribal certification under Section 401 of the CWA, pollutant discharge permits, and the regulation of discharged, dredged, and/or fill material.
Before Sackett v. EPA, the Supreme Court has decided three WOTUS cases on the validity of Agency regulations, each time considering whether wetlands are WOTUS.
In United States v. Riverside Bayview, 474 U.S. 121 (1985), a case about the Corps’ refusal to issue a permit to a developer who wished to dump fill in designated wetlands, the Court agreed with the Corps, holding that WOTUS “encompass[ed] all wetlands adjacent to other bodies of water over which the Corps has jurisdiction.” In Solid Waste Agency of Northern Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159 (2001) (SWANCC) the Court appeared to exclude wetlands from the scope of the CWA altogether. This case involved a developer’s plan to fill ponds used as habitat by migratory birds. The Corps refused to issue a permit because it counted these ponds as interstate waters—and therefore WOTUS—on the theory that migratory birds cross state lines. But the Court not only held that the Corps’ “Migratory Bird Rule” was not supported by the CWA; it appeared to exclude all isolated wetlands from federal jurisdiction. The Court attempted to harmonize the two approaches in Rapanos, 547 U.S. 715, which did not deliver much clarity at all. Justice Scalia authored the opinion of a four-member plurality extending federal jurisdiction to only those wetlands with “a continuous surface connection” to a “relatively permanent body of water connected to traditional interstate navigable waters.” But Justice Kennedy, concurring, defined WOTUS differently, extending jurisdiction under the CWA to any wetland with a “significant nexus” to a traditional navigable water, even without a direct hydrological connection.
WOTUS in Flux
Exactly which of the two tests is controlling has been a matter of debate among courts and scholars since Rapanos. In 2015, under the Obama Administration, the Agencies amended their definition of WOTUS to elucidate Justice Kennedy’s “significant nexus” standard based on peer-reviewed scientific literature. “Clean Water Rule: Definition of ‘Waters of the United States,’” 80 FR 37054 (June 29, 2015) (Clean Water Rule). The Clean Water Rule defined WOTUS to include eight categories of jurisdictional waters, the first four of which would count as waters of the United States under the Rapanos plurality’s narrow interpretation authored by Justice Scalia, and the last four of which were based on a scientifically supported notion of the more expansive “significant nexus” standard endorsed by Justice Kennedy. Twenty-seven states sued the Obama Administration over the Clean Water Rule, however, and it never took effect.
In 2019, the Trump Administration repealed the Clean Water Rule, and in 2020, the Agencies published the “Navigable Waters Protection Rule: Definition of ‘Waters of the United States’” (2020 NWPR). The 2020 NWPR codified Justice Scalia’s definition of WOTUS to “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.”
In August 2021, the U.S. District Court for the District of Arizona vacated and remanded the 2020 NWPR in Pascua Yaqui Tribe v. United States EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021). Plaintiffs challenged EPA’s rollback of the Clean Water Rule specifically because the Agencies did not consider the effect ephemeral waters have on traditional navigable waters. The court ordered that the rule be vacated, rather than merely revised, because the concerns identified by plaintiffs “involve[d] fundamental, substantive flaws that [could not] be cured without revising or replacing the NWPR’s definition of [WOTUS].”
The Biden Administration, which had already planned to repeal the Trump-era rule, proposed its own revised WOTUS rule on December 30, 2022. Revised Definition of “Waters of the United States,” 86 Fed. Reg. 69372 (Dec. 7, 2021). The “Revised ‘Waters of the United States’” rule replaced the Trump Administration’s definition of WOTUS and went into effect on March 20, 2023. The new WOTUS rule aimed to clarify and expand the definition of WOTUS to include headwaters, wetlands, and other important water sources regardless of their size or proximity to navigable waters, and restore protections for ephemeral and intermittent streams, which were excluded under the previous rule.
WOTUS under the Biden Administration
The final WOTUS rule went into effect on March 20, 2023. It defines five categories of WOTUS:
- Traditional Navigable Waters, Territorial Seas and Interstate Waters ((a)(1) waters);
- Impoundments of Jurisdictional Waters ((a)(2) impoundments);
- Tributaries, if they “meet either the relatively permanent standard or the significant nexus standard” (jurisdictional tributaries);
- Adjacent Wetlands, i.e., wetlands adjacent to (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (i.e., jurisdictional adjacent wetlands);
- Intrastate lakes and ponds, streams, and wetlands that do not fall within 1-4 and “meet either the relatively permanent standard or the significant nexus standard.”
40 C.F.R. § 120.2(a)(1)-(5). The rule further defines “significant nexus” for tributaries, adjacent wetlands, and streams to mean “waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters,” which are “traditionally navigable waters” by the text of the CWA. 88 Fed. Reg. at 3006. This definition extends Federal jurisdiction over wetlands and ephemeral waters.
Since the Agencies published the final WOTUS rule on December 30, 2022, it has come under fire from both Republicans in Congress and industry groups opposed to more expansive environmental protection. In decisions that foreshadowed the Court’s ruling in Sackett v. EPA, the rule was stayed in Idaho and Texas in Texas v. EPA, No. 3:23-cv-17, 2023 U.S. Dist. LEXIS 45797 (S.D. Tex. Mar. 19, 2023), and then in 24 additional states in West Virginia v. EPA, No. 3:23-cv-032, 2023 U.S. Dist. LEXIS 64372 (D.N.D. Apr. 12, 2023). The rule was most recently stayed in Kentucky in Kentucky v. EPA, No. 23-5343/5345, 2023 U.S. App. LEXIS 11517 (6th Cir. May 10, 2023).
Sackett v. EPA
In Sackett v. EPA, the Court expressly endorsed the test articulated in the Rapanos plurality opinion and outright rejected Justice Kennedy’s “significant nexus” test. The facts of the case stretch back nearly 20 years. In 2004, the Sacketts began construction of a home in Idaho on property containing wetlands. They received an order from the Corps to halt construction, remove the sand and gravel that they had placed on the lot, and restore the property to its prior condition. The Sacketts challenged the order, but eventually the district court, and then the Court of Appeals for the Ninth Circuit, found against the Sacketts because the property met Justice Kennedy’s “significant nexus” standard and thus placed it within federal jurisdiction. The question for the Supreme Court was whether the Ninth Circuit was right to do so. The Court answered “no,” effectively curtailing the Biden Administration’s extension of federal jurisdiction to wetlands and tributaries that meet the significant nexus standard.
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