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Implications of the Supreme Court Ruling on Wetland Regulation Under Clean Water Act.

SCOTUS Wetland Case:  Sackett v. EPA

 

On May 25, 2023, the Supreme Court came down with a ruling that limits the power of the Environmental Protection Agency (“EPA”) to regulate activity surrounding wetlands under the Clean Water Act (“CWA”). The Court’s holding sets forth a new test for determining what constitutes a wetland and which areas are protected – measures that have been previously followed for decades.

Existing Law

Prior to the Clean Water Act there was the Federal Water Pollution Control Act of 1948. In 1972, amid a push for stricter environmental laws and a greater public awareness, amendments were made to the 1948 law. These amendments became known as the Clean Water Act. The CWA established wide goals and provisions to protect and enhance U.S. waters. The CWA also granted the EPA authority to regulate these issues. In 1977 the CWA was further amended, among which specific language was added, empowering the EPA to regulate wetlands (see Section 404 of the 1977 CWA).

Background of the Case

The case, Sackett v. EPA, was first argued in October of 2022.  It involves the Sacketts, a couple that purchased property near Idaho’s Priest Lake with the intent of building a home. When the Sacketts began to backfill their property with dirt, the EPA notified them that they were in violation of the CWA. The EPA claimed that the Sackett’s property contained wetlands, which are protected from pollutants (e.g., backfill) under the CWA, which regulates the discharge of pollutants into “navigable waters”(i.e., waters of the United States). The EPA argued that the wetlands on the Sacketts property constituted “waters of the United States” because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.” (Sackett v. EPA). The EPA interprets “waters” to include wetlands that are adjacent to the covered bodies of water, and “adjacent” can mean bordering, contiguous, or neighboring. (Sackett v. EPA). The Sacketts then sued, arguing their property did not fall under this definition.

The Decision

This was a 9-0 decision. The Court reversed the judgment of the Ninth Circuit (which held that the Sacketts’ property did contain a wetland) and remanded the case, ruling in favor of the Sacketts. Justice Alito, who delivered the opinion of the Court, focused his analysis on what makes a wetland, a wetland. The Court upheld a previous the definition of “adjacent” (see Rapanos v. United States). An adjacent wetland is covered under the CWA when it is “indistinguishable” from waters of the U.S. and would be “‘difficult to determine where the “water” ends and the “wetland” begins.’” (Sackett v. EPA). This would occur when there is a “continuous surface connection” between the wetland and the water. (Sackett v. EPA). In its holding, the Court established a new test for asserting jurisdiction over an adjacent wetland. A party must establish that:

  • the adjacent body of water is a “water of the United States,” which the Court defines as a “relatively permanent body of water connected to traditional interstate navigable waters”; and
  • the wetland has a continuous surface connection with that water, to make it indistinguishable from where each ends and begins.

While this case was decided unanimously, Justices Kavanaugh, Sotomayor, Kagan, and Jackson disagree with the new test established. In his opinion, with whom Justices Sotomayor, Kagan, and Jackson joined, Justice Kavanaugh argued that this interpretation is rewriting the CWA. He asserted that this test narrows the coverage and meaning of wetlands: from “adjacent” wetlands to now only “adjoining wetlands.” Kavanaugh also pointed out that the text of the CWA does not require the wetland to have a continuous surface connection with the body of water it connects to.

Potential Ramifications

The concept of “adjacent” wetlands being covered under the CWA has been in existence for decades, utilized by agencies, and upheld in previous Supreme Court decisions. The concern is that this new ruling will leave historically protected adjacent wetlands vulnerable. This could impact water quality and flood control – two main functions of a wetland. The Biden administration issued a statement, asserting that this decision “will take our country backwards,” and reconfirmed its dedication to protecting the waters of the U.S.

This is not to be considered legal advice.  You should contact an attorney to discuss your specific situation.


Isabelle Hayes is an intern concentrating in municipal and land use law.  She can be reached at 845-764-9656 and by email.

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