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The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.

The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.

The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.

The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.

The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.

The Supreme Court Narrows Corps' Jurisdiction Over Wetlands

The U.S. Supreme Court substantially narrowed the scope of jurisdiction over wetlands under the Clean Water Act (CWA) through its decision in Sackett v. EPA. The decision relies heavily, if not exclusively, on its prior decision in Rapanos v. US. But, despite the clear language of Sackett, it remains to be seen whether the Corps or EPA will fully adhere to the decision.

Brief Background

The Corps of Engineers is authorized under the CWA to issue permits “for the discharge of dredged or fill material into the navigable waters.” 33 USCA §1344(a), also known as CWA Section 404. The CWA defines “navigable waters” as “waters of the United States.” 33 USCA §1362(7). The proper scope of this definition is critically important in determining the geographic extent of jurisdiction and whether a permit is needed to discharge dredged or fill material.

The initial regulatory definition of ‘waters of the United States’ (or WOTUS) in 1974 was based on the definition of traditional navigable waters (TNW), which are waters that were or had been navigable-in-fact or which could reasonably be so made. Courts recognized, though, that the CWA intended the scope of WOTUS to be broader than the historical reach of jurisdiction. After that recognition, the Corps continually expanded jurisdiction, culminating in the 1986 regulatory definition. 

The 1986 regulatory definition included TNW, but also waters that could affect interstate or foreign commerce, impoundments of those waters, tributaries of those waters and, importantly, wetlands adjacent to any of those types of waters. Adjacent meant bordering, continuous, or neighboring, and specifically included wetlands separated from other WOTUS by man-made dikes or barriers, natural river berms, and the like.

The Supreme Court issued opinions in 1985 and 2001 regarding the proper scope of WOTUS.  First, it upheld jurisdiction over wetlands adjacent to TNW when those wetlands “actually abutted” the TNW. US v. Riverside Bayview Homes, 474 US 121 (1985). Second, it held that jurisdiction did not extend to non-navigable, intrastate, isolated ponds are not ‘navigable waters’ merely because they serve as habitat for migratory birds. Solid Waste Agency of Northern Cook County v. Corps, 531 US 159 (2001).

The Supreme Court again attempted to define the proper boundaries of jurisdiction in 2006 in Rapanos v. US, 547 US 715 (2006). Justice Scalia wrote an opinion asserting that WOTUS only included relatively permanent, standing, or continuously flowing bodies of water and, to be an ‘adjacent’ wetland, the wetland needed a continuous surface connection such that there is no clear demarcation between waters and wetlands. However, that opinion did not command a majority of the Court. Justice Kennedy, in his famous concurrence, asserted there needs to be a ‘significant nexus’ to the TNW, which exists if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable.

After the Rapanos decision, expansive interpretations of WOTUS were the norm. Guidance issued by the Corps and EPA asserted jurisdiction not only over all the waters specified in Justice Scalia’s opinion, but also over all waters that had the remotest possibility of meeting the ‘significant nexus’ test set forth in Justice Kennedy’s concurrence. 

The Obama Administration issued the Clean Water Rule in 2015, which expanded the scope of jurisdiction through the wholesale adoption of Justice Kennedy’s ‘significant nexus’ test. The Clean Water Rule was heavily litigated and, based on several injunctions, was only applicable in about half of the country. 

The Trump Administration tried to restrict jurisdiction when it came to power in January 2017. It issued the Navigable Waters Protection Rule, which followed Justice Scalia’s opinion in Rapanos.  However, that rule was also litigated and was summarily abandoned by the Biden Administration when a district court in Arizona vacated the rule. The Biden Administration went on to adopt its own expansive version of the definition in March 2023. 

Sackett v EPA

In 2004, Michael and Chantell Sackett purchased a lot in Idaho, on which they planned to build a modest home. After they did some work on the property, the EPA issued a compliance order (CO) to them, which lead to the Supreme Court’s first Sackett decision. Sackett v EPA, 566 U.S. 120 (2012). In that decision, the Supreme Court held that the CO was an appealable agency action.

Thereafter, the Sackett’s argued that the proper scope of the Corps / EPA’s jurisdiction was set out by Justice Scalia in Rapanos. The government argued that its more expensive view was correct. The Ninth Circuit sided with the government. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021). However, the Supreme Court agreed to hear the case and decide whether the Ninth Circuit “set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” On May 25, 2023, the Supreme Court issued its decision.

The Supreme Court recounted some of the regulatory history noted above. It noted that EPA took an “expansive view of the CWA’s coverage of wetlands.” In fact, the Supreme Court noted the “agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over ‘adjacent’ wetlands. And by the EPA's own admission, ‘almost all waters and wetlands’ are potentially susceptible to regulation under that test.” Contrary to the agencies’ expansive interpreation, the Supreme Court viewed the CWA’s geographic reach as much narrower. 

As to waters, the Supreme Court noted: “Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable’ out of the statute, holding that it at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.’”

The Supreme Court specifically adopted the restrictive view of ‘waters’ pronounced in Rapanos: “we conclude that the Rapanos plurality was correct: the CWA's use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” It is also important to note that, in discussing the relatively permanent standard, the Rapanos court stated: “The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 126 S.Ct. at p. 2225.

The Supreme Court also identified the scope of jurisdiction over adjacent wetlands. It acknowledged that “some wetlands qualify as ‘waters of the United States.’” Sackett, 143 S.Ct. at pp. 1338-1339. 

The Supreme Court agreed with the Rapanos formulation regarding the adjacent wetlands over which the CWA provides jurisdiction: “In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that ‘waters’ may fairly be read to include only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’ such that it is ‘difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’” That occurs when wetlands 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.’ We agree with this formulation of when wetlands are part of “the waters of the United States.’” 

To be adjacent, the wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” 

The actual holding is as follows: 

In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ Rapanos, 547 U.S., at 755, 126 S.Ct. 2208 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish ‘first, that the adjacent [body of water constitutes] ... ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’

As to the surface connection, the Court did note that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Further, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA. According to the Supreme Court, whenever the EPA can exercise its statutory authority to order a barrier's removal because it violates the Act (e.g., was constructed in a jurisdictional wetland), that unlawful barrier poses no bar to its jurisdiction.

It is also important to note which wetlands were not included within the scope of jurisdiction under the CWA. The concurrences by Justice Kagan and Justice Kavanaugh make it clear. 

First, Justice Kagan noted that the Corps had for many years included even those wetlands “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” Justice Kagan pointed out that the majority opinion was “excluding all the wetlands in [this] category” and thus “narrow[ing] the scope of” the CWA. Justice Kavanaugh’s concurrence had similar language. 

Second, the Supreme Court noted that EPA’s “’significant nexus’ theory is particularly implausible” and “the EPA has no statutory basis to impose it.” Justice Kavanaugh stated that he agreed “with the Court's decision not to adopt the ‘significant nexus’ test for determining whether a wetland is covered under the Act.”

Corps’ Response  

The Corps / EPA have indicated that that they “will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” Of course, they do not have much of a choice as the Supreme Court is the final arbiter of the proper scope and interpretation of federal laws. Despite their statement, though, history suggests that the Corps / EPA will attempt to apply and/or interpret Sackett in such a manner as to assert as much jurisdiction as possible.

For example, the agencies could state that they have jurisdiction up to the ordinary highwater mark and over any wetlands within that boundary or to the extent of the wetlands originating within that boundary. That interpretation coincides with their current geographic reach. However, such an approach would not always be compatible or in line with Sackett’s pronouncement that the wetlands must be indistinguishable from the adjoining waters such that there is no clear demarcation between the two.

The Corps informed Congress that it may issue a final rule reflecting the Sackett decision as opposed to issuing guidance. The Corps indicated that quickly issuing a rule will be more efficient. Regardless, the Corps is no longer issuing approved jurisdictional determinations and some are not issuing preliminary jurisdictional determinations. Further, permitting has slowed as applicants are waiting to see whether their property contains jurisdictional waters under the to-be-issued rule or guidance. 

Nevertheless, the Supreme Court decision provides a much-needed clarification as to the CWA’s geographic reach and the scope of ‘waters of the United States.” Hopefully, the Corps / EPA will truly adhere to the decision so that the clarity provided by Sackett can be relied on by landowners.