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June 27, 2023  |  Written by Kelly M. Doyle

United States Supreme Court Redefines the Scope of Waters of the United States under the Clean Water Act

Background of the Case: Sackett v. Environmental Protection Agency

On May 25, 2023, the United States Supreme Court (Supreme Court) issued its decision in Sackett v. Environmental Protection Agency, et al., Case No. 21-454, reversing the United States Court of Appeals for the Ninth Circuit’s (Ninth Circuit) summary judgment for the federal Environmental Protection Agency (EPA) regarding the scope of the definition of “waters of the United States” under the Clean Water Act (CWA).

EPA Compliance Order and Property Description

Petitioners Michael and Chantell Sackett (Sacketts) bought a parcel of land near Priest Lake, Idaho, in 2004, with the intention of building a home on the property. In preparation for building said home, the Sacketts began backfilling the land with dirt and rocks. Shortly after they began development, the Sacketts received a compliance order from EPA, informing them that the backfilling violated the CWA because their property contained protected wetlands. According to EPA, the protected wetlands on the Sacketts’ property were adjacent to an unnamed non-navigable tributary on the other side of 30-foot road which fed into Priest Lake, an intrastate lake that EPA classified as “waters of the United States.”

Previous Interpretation of “Waters of the United States” under the CWA

At the time of the issuance of this compliance order, EPA interpreted “waters of the United States” to include all waters that could affect interstate commerce, including wetlands adjacent to those waters. The CWA defined “adjacent” to include waters that bordered, neighbored, or were contiguous to waters that could affect interstate commerce. Agency guidance also instructed officials to assert jurisdiction over wetlands adjacent to non-navigable tributaries if those wetlands had a “significant nexus” to traditional navigable waters. Under the CWA, a “significant nexus existed when wetlands, either alone or in conjunction with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of those waters.”

Lawsuit and Appeals Process

The Sacketts then filed suit against EPA under the Administrative Procedure Act (APA) alleging that EPA lacked jurisdiction to issue compliance orders because the wetlands on their property were not “waters of the United States” under the CWA. The district court entered summary judgment for EPA, which was affirmed by the Ninth Circuit on appeal, on the grounds that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters. Thus, the Sacketts’ property was within EPA’s jurisdiction under the CWA. In 2022, the Supreme Court granted certiorari to decide the proper test for determining what wetlands are considered “waters of the United States.” The case was argued before the Court on October 3, 2022, and a decision was issued on May 25, 2023.

Supreme Court Decision and Concerns Raised

A majority of the Supreme Court justices found EPA’s approach untenable, citing concerns such as vagueness of terms and federal overreach. Specifically, the Supreme Court found EPA’s definition of “adjacent” too broad, arguing that the current definition would include almost any wetland throughout the United States. Additionally, the Supreme Court noted the significant penalties attached to violations of the CWA and found that any law that proscribes such penalties must be clearly defined so that ordinary people can understand what conduct is prohibited.

The Supreme Court concluded that the term “adjacent” is too broad to provide clarity on what conduct is prohibited under the CWA.

Supreme Court’s New WOTUS Rule and EPA’s Obligations”

The Supreme Court issued a new rule that “the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ ” The wetland must have “a continuous surface connection” with a water of the United States, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” EPA must issue revised regulations consistent with the Supreme Court’s interpretation of “waters of the United States.”

Impact of Sackett Decision on State Watersheds & California’s Robust Environmental Protection Laws

While this holding undercuts the scope of EPA’s regulatory authority over wetlands under the CWA, states remain free to impose their own protections over waters that do not qualify as “waters of the United States.” In California, the Porter-Cologne Water Quality Control Act (Porter-Cologne) implements provisions of the CWA and establishes a comprehensive program for the protection of “waters of the State.” Porter-Cologne has been recognized as one of the nation’s strongest anti-pollution regulations. The law is implemented by the State Water Resources Control Board in conjunction with nine Regional Water Quality Control Boards throughout California, which adopt and enforce water quality control plans (or “basin plans”) and waste discharge requirements to protect beneficial uses of water and water quality. In contrast, states without such robust environmental regulations may find that federally protected wetlands are now subject to little or no oversight over water quality and pollution.

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