The U.S. Supreme Court on May 25 issued a decision that involves the scope of the Clean Water Act and, more specifically, whether an appeals court set forth the proper test for determining whether wetlands are “waters of the United States” under the CWA.
The ruling, in Sackett v. EPA, is based on an appeal by a family of the U.S. Court of Appeals for the Ninth Circuit's ruling that they needed a Clean Water Act permit to build a home on their property. The court ruled in a 9-0 opinion that the wetlands on the property are not subject to CWA jurisdiction.
The decision will have significant implications for the Biden Administration’s 2023 Water of the United States (WOTUS) Rule, the various cases challenging that rule, and CWA implementation going forward.
In January 2022, the Supreme Court agreed to consider the case. The U.S. Court of Appeals for the Ninth Circuit had held that then-Justice Anthony Kennedy’s “significant nexus” test from Rapanos v. United States and not the Rapanos plurality’s “relatively permanent waters” standard, determined whether wetlands are subject to CWA regulation.
The court’s opinion essentially adopts the Rapanos et al. v. The United States, 547 U.S. 715 (2006) plurality’s “continuous surface connection” standard authored by Justice Antonin Scalia, rejects the “significant nexus” test described in Justice Kennedy’s concurring opinion in Rapanos, and reverses the Ninth Circuit holding that the wetlands on the Sacketts’ property are jurisdictional.
The justices held that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.”
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.”
More specifically, with respect to wetlands, the court held that the definition of WOTUS includes only those wetlands that have a continuous surface connection to other jurisdictional waters. Adjacent wetlands are included within WOTUS if they are indistinguishably part of a body of water that itself is a water under the CWA.
As a result, the court found that the Environmental Protection Agency’s position -- that adjacent wetlands are jurisdictional when they possess a significant nexus to traditional navigable waters and that wetlands are “adjacent” when they are “neighboring” -- lacks merit.
Public power utilities have had long-standing concerns over any expansion to the definition of WOTUS. The ruling offers some measure of clarity while still ensuring environmental protection.