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Fall 2023: Biodiversity

Relative Permanence—the New WOTUS Test

Patrick J Paul


  • Discusses how the Court’s decision in Sackett II marked yet another change in the definition of WOTUS.
  • Sackett II held that the CWA extended to only those wetlands with a continuous surface connection to bodies that are navigable waters of the United States in their own right so that they are indistinguishable from those waters.
Relative Permanence—the New WOTUS Test
Edwin Remsberg via Getty Images

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Late last spring, the U.S. Supreme Court published its much-anticipated decision in a Clean Water Act (CWA) case involving two Idaho homeowners that narrowed the definition of Waters of the United States (WOTUS), thereby further restricting the regulatory authority of the U.S. EPA (EPA) and U.S. Army Corps of Engineers pursuant to the CWA. Sackett v. EPA, 143 S. Ct. 1322 (2023) (Sackett II). The Court’s decision marked yet another change in the definition of WOTUS, a term never defined by Congress but addressed in a multitude of ways over decades by the Supreme Court and many other federal courts.

The decision has been reported by some as a rebuke of the overreach of the Corps and EPA in implementing the CWA. However, as Paul Harvey noted often, there is indeed much more to the story. But first, some background. The CWA was enacted in 1972 to restore and maintain the integrity of the nation’s waters. 33 U.S.C. § 1251. The CWA granted EPA and the Corps authority to regulate activities affecting “navigable waters,” which Congress defined as “waters of the United States.” Id. § 1362(7). Unfortunately, the original legislation did not explicitly define those five most critical words of the CWA—“Waters of the United States”—leading to subsequent legal and regulatory challenges.

This particular decision marked the second time the Sacketts visited the Supreme Court over their desire to build a home on property they purchased in 2004 near Priest Lake, Idaho, that involved backfilling their lot with dirt in preparation for construction. See Sackett v. EPA, 566 U.S. 120 (2012) (Sackett I). EPA, in response to a complaint it received from a neighbor, determined that wetlands on the Sacketts’ property were adjacent to an unnamed tributary on the other side of a 30-foot road. Because that tributary fed into a non-navigable creek, which then fed into Priest Lake, a traditionally navigable body of water, EPA determined that a “significant nexus” to a traditional navigable water existed. Accordingly, EPA determined the preconstruction activities violated the CWA.

The Sacketts initially filed suit under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702 et seq., claiming EPA lacked jurisdiction. Their claims were initially dismissed by the district court, which determined that a compliance order was not a final agency action. However, in Sackett I, the Supreme Court concluded that the homeowner claims could proceed under the APA, thus setting the stage for Sackett II.

Space limitations and reader interest concerns necessarily constrict a complete recitation of the “rest of the story” here. Suffice it to say that Sackett II’s lineage runs deep with continuous, if sometimes tenuous, connections to prior related court decisions and administrative rulemakings. Consequently, it is best to fast forward the story to 2015, when the Court, in Rapanos v. United States, 547 U.S. 715 (2015), in a 4-1-4 plurality decision, gave rise to Justice Kennedy’s “significant nexus” test. Although two sets of four justices collectively supported two entirely different tests, Justice Kennedy’s solo opinion outlining his significant nexus views on WOTUS would carry the day for a substantial, and controversial, period of time. Notably for these purposes, Justice Scalia penned an opinion that would ultimately be adopted in Sackett II.

The Kennedy significant nexus test required that a water or wetland possess a significant biological, physical, or chemical nexus to waters that are or were in fact navigable in order for regulatory jurisdiction to apply. Since Rapanos, three rules from three different administrations (Presidents Obama, Trump, and Biden) sought to codify their own definitions of WOTUS, with a key question being how to apply the test when a wetlands area is “adjacent to” but not adjoining—i.e., directly abutting—traditional navigable waters.

The Obama rule attempted to stay true to the significant nexus test, noting that “adjacent wetlands” include wetlands “separated by constructed dikes or barriers, natural river berms, beach dunes and the like.” 80 Fed. Reg 37105, 37116 (2015). The Trump Navigable Waters Protection Rule (NWPR), not surprisingly, sought to move away from the significant nexus test and toward Scalia’s concurring opinion in Rapanos, which determined that waters would only qualify as navigable if they were relatively permanent and had a continuous surface connection to navigable waters. Even the NWPR, however, included wetlands physically separated by covered waters “only by a natural berm, bank, dune, or similar natural feature.” 85 Fed. Reg. 22338, 22340 (2020). Not to be outdone, the Biden administration in June 2021, knowing full well that the Court was planning on again addressing the WOTUS definitional conundrum, announced its intention to replace Trump’s NWPR, and in fact did so in January 2023, prior to Sackett II’s publication. 88 Fed. Reg. 3004 (Jan. 18, 2023)

The Biden rule faced immediate challenges in the courts and in Congress. For example, shortly after its effective date, Congress utilized the Congressional Review Act to pass disapproval resolutions to overturn the rule. Although the resolutions enjoyed bipartisan support, that support was not sufficient to override President Biden’s veto. Thus, the Biden rule sustained a while longer. Its viability, however, was further limited—first by a Texas district court blocking implementation of the rule in Texas and Idaho, Texas v. U.S. EPA, No. 3:23-cv-00017, 2022 U.S. Dist. LEXIS 45797 (S.D. Tex. Mar. 19, 2023), and subsequently by the North Dakota District Court decision enjoining the rule in 24 additional states. West Virginia v. U.S. EPA, No. 3:23-cv-00032-DLH-ARS, 2023 WL 2914389 (D.N.D. Apr. 12, 2023). Ultimately, however, Sackett II sounded the death knell for the Biden rule.

Although not directly before it, clearly the Court was aware of the Biden rule before publishing its decision and in fact references it. Notably, during oral argument in Sackett II on October 3, 2022, Justice Kagan asked about the status of the pending Biden rule. On December 30, 2022, the Solicitor General notified the court that the Biden rule had been finalized and submitted for publication in the Federal Register. Justice Kavanaugh’s concurring opinion cited the Biden rule and noted that although eight presidential administrations differed on the CWA scope, all had agreed that the CWA’s coverage of adjacent wetlands meant more than adjoining wetlands. Sackett II, 143 S. Ct. at 1365. The Sackett II majority disagreed and instead ruled that the CWA applies to “relatively permanent” bodies of water with a “continuous surface connection” to traditional navigable waters as a precursor to regulation.

In response to Sackett II, EPA and the Corps stated on EPA’s website that “the agencies will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps.” About Waters of the United States, USEPA: Waters of the United States. Such an approach necessarily marks the end of the Biden rule in its adopted form.

Although all nine justices concurred that the wetlands at issue on the Sackett property were not jurisdictional, and that EPA had overstepped its authority, not all agreed with the majority’s relative permanence test. Justice Alito delivered the opinion of the court and Justices Roberts, Thomas, Gorsuch, and Barrett joined. Sackett II, 143 S. Ct. 1322. Justice Kagan filed a concurring opinion joined by Justices Sotomayor and Jackson and Justice Kavanaugh filed a concurring opinion joined by Justices Sotomayor, Kagan, and Jackson. Both of these concurrences took the position that adjacent wetlands are within the scope of the CWA. At the other extreme, Justice Thomas filed a separate concurring opinion in which Justice Gorsuch joined, stating, “Congress chose to tether federal jurisdiction under the CWA to its traditional authority over navigable waters. The EPA and the Corps must respect that decision.” Id. at 1359.

Sackett II is the fourth (and perhaps not final?) iteration of a WOTUS definition. See U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid W. Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC); Rapanos v. United States, 547 U.S. 715 (2006). It resurrected Justice Scalia’s concurrence in Rapanos and with a 5-4 majority held that the CWA extended to only those wetlands with a continuous surface connection to bodies that are navigable waters of the United States in their own right so that they are indistinguishable from those waters. It further noted that the Sackett wetlands were distinguishable from any possibly covered waters.

Going forward, while the agencies review “next steps,” the following two-part test to CWA jurisdiction applies: (1) Is the water relatively permanent, and, if so, (2) does it have a continuous surface connection to a navigable water body?

The Court made allowance that temporary interruptions in surface connection can occur due to phenomena like low tides or dry spells. Sackett II, 143 S. Ct. at 1341. In a footnote, the majority also observed that ordinarily a barrier separating a wetland from a water of the United States would remove that wetland from jurisdiction but that a landowner may not carve out wetlands from jurisdiction by illegally constructing a barrier on jurisdictional wetlands. Id. at n.16. It further noted that when EPA can exercise its statutory authority to order such a barrier’s removal, that barrier poses no bar to agency jurisdiction. Id.

Although still subject to state jurisdiction and permitting, waterbodies that are not relatively permanent (e.g., ephemeral washes, dry arroyos) or that lack a continuous surface connection with traditional navigable waters are no longer subject to EPA and Corps regulatory authority. President Biden described the Sackett II decision as “disappointing” and one that would “take our country backwards.” Statement from President Joe Biden on Supreme Court Decision in Sackett v. EPA (May 25, 2023). He committed to working with the Department of Justice, EPA, and the Corps to carefully review the decision and to utilize all legal authority to continue to protect the nation’s waters. For its part, the Sackett II majority noted that a continuing view that CWA jurisdiction could extend to anything defined by the presence of water would be inconsistent with the rights and responsibilities of states to prevent, reduce, and eliminate pollution, and to plan the development and use of land and water resources within their borders. Sackett II, 143 S. Ct. at 1339. And so it seems the debate on the limits of CWA jurisdiction will continue notwithstanding the Sackett II approach, which, at least for the moment, has curtailed the reach of EPA and the Corps.