Waters of the US: Supreme Court tightens criteria for Clean Water Act application

Priest Lake, Idaho
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May 26, 2023 – In our ongoing coverage of issues tied to Waters of the US, we have been tracking Sackett v. Environmental Protection Agency which addresses the limited question, “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U. S. C. §1362(7).”

Yesterday, the Supreme Court issued its ruling, setting more rigorous standards for establishing if a wetland falls under the jurisdiction of the Clean Water Act (CWA). This decision marks a significant triumph for Michael and Chantell Sackett, an Idaho couple, who have been engaged in a legal conflict with the federal government for over a decade and a half regarding their intentions to construct a home on a vacant plot near a large body of water. However, the ruling signifies a considerable loss for the Environmental Protection Agency (EPA).

The Sacketts’ Legal Struggle.

According to the SCOTUS BlogOpens in a new tab., the couple’s legal wrangle started soon after they initiated groundwork on their property, which is situated about 300 feet from Priest Lake. This construction work included backfilling their property in 2007. Following this, they received an EPA notice instructing them to cease all work on the grounds that their property encompassed wetlands shielded by the CWA. The Act prevents the discharge of pollutants, including rocks and sand, into waters designated as “waters of the United States.”

The EPA asserted that the wetlands within the Sacketts’ property extended into a non-navigable creek, eventually leading to Priest Lake. This assertion was initially upheld by the U.S. Court of Appeals for the 9th Circuit using Justice Anthony Kennedy’s “significant nexus” test established in Rapanos v. United States. This test considers whether a significant relationship exists between the wetlands and waters protected by the CWA, and whether these wetlands greatly impact the quality of these waters.

A Shift in Legal Interpretation.

The Supreme Court overturned the 9th Circuit’s decision. Justice Samuel Alito explained that the courts should adhere to a more demanding test proposed by four justices in Rapanos, including himself, Chief Justice John Roberts, and Justice Clarence Thomas. This test asserts that the CWA only applies to a specific wetland if it merges or flows into an adjoining waterway that serves as a conduit for interstate commerce.

Justice Alito referenced the terminology of the CWA, underscoring that the term “waters” typically pertains to relatively permanent water bodies like lakes and rivers. However, he stated that a holistic reading of the law indicates that some “adjacent” wetlands could also be classified as “waters of the United States.” Wetlands entirely separate from traditional water bodies wouldn’t qualify, but the CWA would apply to those which, in practice, are indistinguishable from waters of the United States due to their continuous surface connection with a larger water body.

The Impact on the Sacketts’ Case.

With this new interpretation, Alito argued that the lower court’s decision should be reversed as the wetlands on the Sacketts’ property are distinctly separate from any potential covered waters. He dismissed the “significant nexus” rule presented by Kennedy in Rapanos and by the EPA, labeling it as highly unlikely. He emphasized that under the EPA’s interpretation, it would be challenging for many landowners to determine if the CWA would apply to their properties.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote a separate concurrent opinion. He suggested that this ruling restricts an overreach of federal power that had simultaneously eroded States’ authority.

Minority Opinion and Implications.

Four justices — Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson — agreed with the judgment on the Sacketts’ case but disagreed with the majority’s reasoning. Kavanaugh argued that the new test will exclude some long-regulated adjacent wetlands from the CWA’s protection, leading to significant consequences for water quality and flood control across the country.

Reactions to the Ruling

Damen Schiff, the Sacketts’ representative from the Pacific Legal Foundation, heralded the ruling as a momentous victory for property rights and the constitutional separation of powers. He lauded the decision for returning the scope of the CWA to its initial and appropriate boundaries. Schiff added that this decision would provide courts with a definite metric for fairness and consistency from federal regulators.

However, environmental advocates expressed grave concerns about the ruling’s ramifications. Sam Sankar of Earthjustice criticized the decision, arguing it negated fifty years of advancement facilitated by the Clean Water Act. He expressed fears that around 90 million acres of previously safeguarded wetlands now confront severe threats from polluters and developers. Sankar concluded by asserting the ruling would negatively impact everyone living in the United States due to its decision to deregulate wetlands.

The SCOTUS BlogOpens in a new tab. concludes that while the ruling is seen as a victory for the property owners in this case, the full impact on environmental policy and protections in the United States remains to be seen. It has certainly reignited a debate over the interpretation and enforcement of the Clean Water Act, a debate which will likely continue for years to come.

Citations; Ruling Download; Further Information.

Amy Howe, Supreme Court curtails Clean Water Act, SCOTUSblog (May. 25, 2023, 11:40 AM), https://www.scotusblog.com/2023/05/supreme-court-curtails-clean-water-act/Opens in a new tab.

The Sackett v. EPA rulingOpens in a new tab. can be downloaded here.

Docket and downloadsOpens in a new tab. published on SCOTUS blog.

Image: Aerial view of Priest LakeOpens in a new tab., Idaho for https://en.wikipedia.org/wiki/Priest_LakeOpens in a new tab..  August,2020 by Pecky Cox, available via Wikimedia Commons.





Since 1995, Deborah has owned and operated LegalTech LLC with a focus on water rights. Before moving to Arizona in 1986, she worked as a quality control analyst for Honeywell and in commercial real estate, both in Texas. She learned about Arizona's water rights from the late and great attorney Michael Brophy of Ryley, Carlock & Applewhite. Her side interests are writing (and reading), Wordpress programming and much more.

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