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July/August 2023

Does Sackett bring clarity to “waters of the United States”?

Robin Kundis Craig


  • Examines how Sackett v. Environmental Protection Agency has narrowed the scope of not only adjacent wetlands but also of waters of the United States.
  • While the decision narrows federal regulatory authority, it also raises questions about how the ruling will affect environmental protections and regulations, especially in the Western U.S. and on tribal lands.
Does Sackett bring clarity to “waters of the United States”?
Irina Mos/

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When the U.S. Supreme Court issued its decision in Sackett v. Environmental Protection Agency on May 25, 2023, one thing many Court watchers were hoping for, regardless of which side of the “waters of the United States” debate they fall on, was clarity. The majority opinion does bring some clarity to this long-running environmental law fight, but how Sackett will dovetail with the Court’s April 2020 decision in County of Maui v. Hawaii Wildlife Fund remains to be seen.

The Federal Water Pollution Control Act, better known as the Clean Water Act (CWA), prohibits the addition of a pollutant to jurisdictional waters from a point source by a person without a permit (33 U.S.C. §§ 1311(a), 1362(12), 1342, 1344). Jurisdictional waters include the ocean, the contiguous zone, and the “navigable waters,” which the CWA defines to be “the waters of the United States, including the territorial seas” (id. § 1362(7)). The debate regarding the proper scope of “waters of the United States” first arose between the two federal agencies that implement the CWA, the U.S. Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps). They reached a consensus definition in the 1980s, which the U.S. Supreme Court deferred to in United States v. Riverside Bayview Homes (1985), upholding the CWA’s application to wetlands adjacent to traditional navigable waters.

Fast forward 16 years to a changed Court. In 2001, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court decided (5-4, on constitutional avoidance and federalism grounds) that “waters of the United States” do not include isolated submerged sand and gravel pits simply because migratory birds use them. However, it was the 2006 decision in Rapanos v. United States that fractured the Court, leaving the agencies and regulated communities with three approaches to “waters of the United States.” Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, confined “waters of the United States to “only relatively permanent, standing or flowing bodies of water” (547 U.S. 715, 732–39 (2006)), including “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right” (id. at 742). In contrast, Justice Kennedy in concurrence required a “significant nexus” between wetlands (and other smaller waters) and traditional navigable waters (id. at 767, 779–81 (Kennedy J., concurring)). Dissenting Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, would have adopted a less stringent test but, under the circumstances, concluded that CWA jurisdiction exists when a water meets either Justice Scalia’s or Justice Kennedy’s test (id. at 809–10 (Stevens, J., dissenting)).

In Sackett, the Court also fractured—but Justice Alito authored a majority opinion, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett. Justice Thomas also separately wrote a concurring opinion in which Justice Gorsuch joined, while Justices Kagan (joined by Justices Sotomayor and Jackson) and Kavanaugh (joined by Justices Kagan, Sotomayor, and Jackson) each wrote separate concurrences, joining in the judgment only. The case revolved around property near Priest Lake, Idaho, that Michael and Chantell Sackett purchased in 2004, and more specifically the legality of their decision to fill the wetlands on the property without a permit so that they could build a home. On the Sacketts’ first trip to the Supreme Court in 2012, the Court decided unanimously that they were allowed to immediately challenge the EPA’s jurisdictional determination, without waiting for further administrative proceedings. The current decision is the end point of that challenge.

The first important result in Sackett is that the Justices decided unanimously that the EPA and the Corps lacked jurisdiction over the Sacketts’ (former) wetlands. Second, all nine Justices further agreed that Justice Kennedy’s test from Rapanos was not the correct interpretation of either “adjacent wetlands” or “waters of the United States.” This decision will require all federal Courts of Appeals that have applied Rapanos to adjust their approaches to “waters of the United States.”

Beyond those two points of agreement, however, the four opinions offer notably different perspectives on the CWA and adjacent wetlands. For Justice Alito’s majority, “[t]he CWA is a potent weapon” that imposes “crushing consequences” on even “inadvertent violations” (Alito Slip Op. at 3). The majority emphasized the EPA’s “convoluted” logic in concluding that the Sacketts’ wetlands are jurisdictional (id. at 5–6), as well as the burdens, procedural and substantive, that section 404 imposes on landowners (id. at 12–14). Applying what it considered a plain-meaning reading of “waters of the United States,” the majority explicitly adopted Justice Scalia’s plurality test from Rapanos, focusing, as Justice Scalia did, on Congress’s use of “waters” (id. at 14–15) but adding new emphasis to “navigable.” “At a minimum, . . . the use of ‘navigable’ signals that the definition principally refers to bodies of navigable water like rivers, lakes, and oceans” (id. at 15), and “[t]he CWA repeatedly uses ‘waters’ in contexts that confirm the term refers to bodies of open water” (id. at 16).

Nevertheless, the majority acknowledged that “statutory context shows some wetlands qualify as ‘waters of the United States,’” focusing on the 1977 amendments that added section 1344(g) (id. at 18–19). However, to be included, “wetlands must qualify as ‘waters of the United States in their own right,” meaning that “they must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA” (id. at 19). As a result, “[w]etlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby” (id. at 20). Because the Sacketts’ wetlands “are distinguishable from any possibly covered waters,” Clean Water Act jurisdiction did not exist (id. at 27–28).

Moreover, the majority wrote that, as in SWANCC, the states’ “primary roles” in regulating land and water use undercut expansive federal jurisdiction (id. at 17–18). Notably, the majority flatly refused to defer to the EPA’s and the Corps’ new 2023 regulations, in part because the EPA was seeking to alter the balance of power between the federal governments and the states (id. at 23). Moreover, “the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties” (id. at 24). Thus, a follow-on consequence of Sackett is that the 2023 “waters of the United States” regulations are almost certainly invalid, especially because they rely on the significant nexus test.

Justice Thomas, joined by Justice Gorsuch, authored the first concurring opinion. These two Justices argued that “navigable” and “of the United States” also limit the scope of “waters of the United States” (Thomas Slip Op. at 1). They would limit federal authority over water to that expressed in the Commerce Clause’s “channels of commerce” jurisprudence, meaning that Congress could regulate only traditionally navigable waters and only for the purposes of protecting interstate and international commerce (id. at 8). Under Justice Thomas’s interpretation, not even Priest Lake—a wholly intrastate lake—is subject to the federal government’s authority, let alone any wetlands (id. at 24–25). Moreover, because of his alleged adherence to the original understanding of the Commerce Clause, Justice Thomas believes that all federal environmental law rests on shaky constitutional grounds (id. at 26).

In contrast, Justice Kagan, joined by Justices Sotomayor and Jackson, concurred in the judgment but argued that the majority’s view of “adjacent” wetlands was too narrow (Kagan Slip Op. at 1). These Justices would have still included as jurisdictional wetlands that are “‘separated from a covered water only by a manmade dike or barrier, natural river berm, beach dune, or the like’” (id. (quoting the consensus regulations)). Notably, Justice Kagan’s opinion celebrates the CWA and its accomplishments and acknowledges that a broader scope was necessary to achieve Congress’s clear goals (id. at 2–3).

Justice Kavanaugh’s concurrence—which Justices Sotomayor, Kagan, and Jackson joined—explained that these Justices agree that the Court was correct to reject the “significant nexus” test. These Justices also agree “with the Court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the Act and are therefore not subject to permitting requirements” (id. at 1–2). The implication—although they do not say so explicitly—is that they also concur in the majority’s adoption of Justice Scalia’s test for “waters of the United States.” However, like Justice Kagan, Justice Kavanaugh disagreed with what he characterized as the majority’s new “‘continuous surface connection’” test for wetlands, emphasizing that “adjacent wetlands” (the term the CWA uses) and “adjoining wetlands” (the test the majority adopts) are different, with adjoining wetlands being a subset of adjacent wetlands (id. at 2–6).

Notably, Justice Kavanaugh relied on “longstanding agency practice” as one reason for keeping the broader definition of adjacent wetlands, emphasizing that this dual-agency definition had persisted through eight presidential administrations that have otherwise sometimes held vastly different views on environmental regulation (id. at 6–8). As such, Justice Kavanaugh seemed willing to continue to defer to long-standing agency definitions, acknowledging that their very survival adds clarity and certainty to the CWA’s meaning. Justice Kavanaugh also strongly resisted the majority’s characterization of the EPA as overreaching its authority, noting that the interpretation of “adjacent wetland” had been settled in 1977 and that “waters of the United States” is an operative rather than obscure provision of the act (id. at 11); in other words, there is no hint of a “major question” in this case. Finally, while “[t]he Court suggests that ambiguities or vagueness in federal statutes should be construed in favor of the property owner, particularly given that States have traditionally regulated private property rights,” Justice Kavanaugh stressed that “the Federal Government has long regulated the waters of the United States, including adjacent wetlands,” and that the majority was creating rather than recognizing ambiguity in the statute (id.).

Justice Kavanaugh, relying on the United States’ brief, also indicated that the “continuous surface connection test” is not as clear as the majority suggested it is (id. at 13–14). While his questions focused on adjacent wetlands, questions also remain regarding the test’s applicability to other smaller waters, such as non-navigable tributaries. While the most immediate non-navigable tributaries should be deemed to have a continuous surface connection to traditional navigable waters, it remains to be seen how far upstream courts will be willing to acknowledge that a continuous surface connection extends.

It is at precisely this point that the 2020 County of Maui decision will likely become increasingly important. Construing “from a point source” in the context of Section 402 of the CWA, the County of Maui Court created the functional equivalent test (142 S. Ct. 1462, 1476 (2020)). Under this test, CWA jurisdiction exists either “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means” (id.)—in the case itself, by flowing through groundwater to the ocean over roughly 87 to 110 days. County of Maui thus indicates that the legal status of intermediate waters is largely irrelevant when pollutants that a point source releases reach relatively close traditional navigable waters in recognizable form relatively quickly. Thus, filling wetlands that are not immediately adjacent “waters of the United States” under Sackett could still be a “discharge of fill material” requiring a section 404 permit—that is, an addition of fill material to a jurisdictional water from a point source (the equipment that did the filling)—if some of the fill material travels downstream to a larger navigable water.

Nevertheless, by both adopting and refashioning Justice Scalia’s Rapanos test, Sackett has narrowed the scope of not only “adjacent wetlands” but also of “waters of the United States.” Justices Kagan and Kavanaugh confined their protests to the meaning of “adjacent,” but the Court has now limited all covered waters to relatively permanent, large, continuously flowing or standing waterbodies. Although the Court was not clear whether these waterbodies must also be natural (notably, the Corps has long had jurisdiction over waters artificially made navigable), the retraction of the Clean Water Act’s coverage—as many amicus briefs detailed—is likely to be severe, particularly in the West and on tribal lands. The states whose interests the majority sought to protect might extend state law coverage (although such extensions have been an issue since SWANCC and many states now have laws that limit their water quality laws to the federal CWA’s scope), but they cannot protect the Tribes within their borders. One last consequence of Sackett, therefore, may be that Tribes increasingly use their own Clean Water Act authorities to protect wetlands and smaller waters on tribal lands from polluting activities.