The Supreme Court just issued a significant environmental law ruling in Sackett v. EPA, ruling against the EPA’s authority to regulate certain wetlands under the Federal Clean Water Protection Act.  The Court’s holding is a massive disappointment for environmentalists. It is poised to circumscribe the Clean Water Act’s ability to regulate a broad swath of wetlands based upon the Court’s reasoning in defining “waters of the United States.” 

To back up:  the Federal Clean Water Protection Act — commonly known as the Clean Water Act —is the central federal law prohibiting discharge of pollutants into the “waters of the United States.” Within the statute, the Clean Water Act defines navigable waters to encompass “the waters of the United States, including the territorial sea.” Traditional navigable waterways—think of the Chattahoochee  or Mississippi River—are clearly waters of the United States and enjoy Clean Water Act protections. That has never been questioned. It is far more difficult—and controversial—to determine the scope of the Clean Water Act’s authority as applied to wetlands and other non-navigable waterways. This is particularly true for wetlands that are physically removed from traditional navigable waterways.

Indeed, since the Clean Water Act was passed in 1972, environmentalists, executive branch officials, and private property owners alike have struggled to define what, exactly “waters of the United States” means. So, too, has the Supreme Court, which seems to revisit issue every 10 or 15 years.

The Supreme Court’s most recent foray into this question occurred in 2006 in Rapanos v. United States, which has led to even more confusion. This 4-1-4 decision lacked a clear majority opinion. Rapanos also showcased a sharp divide between Justice Scalia and Justice Kennedy’s approach to what counts as a water of the U.S. Writing for the plurality, Justice Scalia emphasized that wetlands must have a “continuous surface connection” with a relatively permanent body of water. Writing a solo-authored concurrence, Justice Kennedy took a more holistic view, holding that the connection between wetlands and other bodies of water did not necessarily have to be visible. There only needs to be a “significant nexus between the wetlands in question and navigable waters in the traditional sense.” Since Rapanos, confusion over Clean Water Act jurisdiction reigned, with different circuit courts applying the Kennedy and Scalia tests in markedly different ways.

Enter Sackett, which began 20 years ago when Michael and Chantell Sackett bought property near Priest Lake, Idaho, and began to fill in part of their lot.  EPA viewed this part of the Sackett property as wetlands and covered as “water of the United States.”  EPA notified the Sacketts that filling in their private property required a dredge and fill permit under the Clean Water Act. The Sacketts sued the EPA in 2008. The case weaved its way through the federal court system before landing at the Supreme Court this past term.

While all nine justices agreed that the Sackett’s property did not qualify for protection under the Clean Water Act, Justice Alito was able to garner five votes in adopting a new “waters of the United States” test. Specifically, Justice Alito adopted the more restrictive Scalia test in Rapanos—that a wetland must have a continuous surface connection to relatively permanent body of water.

So where do we go from here? Following Sackett, the EPA and state environmental agencies with federal permitting authority will no longer have Clean Water Act jurisdiction over a massive swath of wetlands. By one estimate, as many as half of the 118 million acres of wetlands are no longer protected by the Clean Water Act following this ruling. This has implications for the federal government’s ability to control pollution and flooding—the latter of growing concern due to climate-related extreme weather. Look for follow-on rulemaking from the Biden Administration, which must comply with the Alito/Scalia test for what constitutes a “water of the United States.” 

—Mark Nevitt, associate professor of law