On May 25, 2023, the U.S. Supreme Court (SCOTUS) issued its second opinion in Sackett v. EPA, ruling the EPA and the U.S. Army Corps of Engineers (Corps) improperly claimed jurisdiction over a private property wetland.

 

In a unanimous ruling for the nine justices, Justice Samuel Alito, writing for the majority, said, “Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

The decision stated that “federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act (CWA) that could expose many wetlands across the U.S. to filling and development.”

The definition under fire again from SCOTUS is “waters of the United States (WOTUS).”

Precedent

Three different SCOTUS cases have addressed the definition of WOTUS.

• In the 1985 United States v. Riverside Bayview Homes, Inc., case, SCOTUS “deferred to the Corps’ assertion of jurisdiction over wetlands actually abutting a traditional navigable water, stating that adjacent wetlands may be regulated as waters of the United States because they are ‘inseparably bound up’ with navigable waters and ‘in the majority of cases’ have ‘significant effects on water quality and the aquatic ecosystem’ in those waters.”
• In the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) case, SCOTUS determined there was no federal jurisdiction “over nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters. …”
• In the 2006 Rapanos v. United States case, a four-Justice SCOTUS plurality determined WOTUS “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] ... oceans, rivers, [and] lakes’” and “wetlands with a continuous surface connection” to a “relatively permanent body of water connected to traditional interstate navigable waters.”

However, Justice Anthony Kennedy wrote a lone concurring opinion: “[T]o constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”

The term “significant nexus” is defined as waters that form a sufficiently great central link or connection. It’s similar to standing in the middle of a large intersection.

Regarding the above “precedent-setting” cases, instead of following Justice Antonin Scalia’s plurality opinion that narrowly interpreted “navigable waters,” lower courts and the government “uniformly followed Justice Kennedy’s lone opinion, which interpreted the term expansively but very vaguely,” according to Pacific Legal Foundation.

Facts of the case

The Sacketts purchased a small parcel of land on wetlands 100 yards from Priest Lake in Idaho. When the Sacketts began filling their property, which is separated from the lake by a roadway, to start construction on their home, the EPA stepped in and said they must apply for a Section 404 permit to fill their “wetland” property. They began battling the EPA in court approximately 20 years ago.

“In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts,” according to the Cobb County Courier. “After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the [CWA]?”

In October 2022, when SCOTUS heard the case the second time, legal counsel for the Sacketts argued that “the roadway relieves them of the need to apply for a Section 404 permit because it severs any physical connection between the wetland and the lake, rendering the wetland non-‘adjacent’ and therefore non-jurisdictional under the test articulated by Justice Antonin Scalia in the court’s 2006 decision in Rapanos v. United States,” according to an opinion article by Peter Alpert, a partner at Ropes & Gray LLP, in Bloomberg Law.

The EPA argued “that the Sacketts’ wetland is jurisdictional under Justice Anthony Kennedy’s opinion in Rapanos, which articulated a broader, ‘nexus’-based test for identifying wetlands that the EPA may regulate for the sake of water quality, and also under regulations through which the EPA and the Corps administered the Section 404 program long before Rapanos was decided,” Alpert continues.

During oral arguments in the case, some of the justices focused their questions on the term “adjacency,” with counsel for the Sacketts arguing that in this context, it’s defined as “touching.” However, Chief Justice John Roberts pointed out that train tracks are adjacent to train stations, but they don’t physically touch one another.

A blog post by The Council of State Governments says that “Justice Brett Kavanaugh noted that in the 50 years since the act was passed, the agency has consistently said wetlands and other waters are covered, even when they do not flow into other waters. Near the end of the argument, Justice Kavanaugh wondered whether bringing clarity to the language of the act was the responsibility of Congress rather than the courts.

“Most of the justices seemed to be struggling with how to best achieve a balance between protecting U.S. waterways and protecting private property ownership.  Interestingly, the government attorney noted to the justices that the [EPA] was working on a new rule regarding navigable waters and wetlands that would clarify situations like the one at issue in this case.”

Recent decision

In this decision, the majority studied the CWA text to determine the statute’s geographical reach.

“The majority writes that the plural ‘waters’ is commonly used to refer to ‘geographical features’ ordinarily described as ‘streams, oceans, rivers, and lakes,’” says The National Law Review. “Because the statute refers to waters ‘including’ adjacent wetlands, only wetlands that are ‘indistinguishably’ part of a stream, ocean, river, or lake are covered. So, ‘adjacent wetlands’ under the CWA are those wetlands that share a ‘continuous surface connection’ with those water bodies.

“The majority also noted that water issues on private property have traditionally been under state, rather than federal, jurisdiction. With this background, the majority stated that ‘exceedingly clear’ language showing that Congress intended to upset this balance was necessary to support EPA’s regulation, and that current CWA language was insufficient to do so. Additionally, the majority wrote that clear language was required to mitigate vagueness concerns because CWA contains provisions which impose ‘severe criminal sanctions for even negligent violations.’”

Wetlands include swamps, marshes, and bogs, which provide valuable natural ecological activities such as pollutant filtering and protection from flooding.

This decision upends the traditional approach used by the EPA and the Corps, which required permits to dredge or fill in wetlands adjacent to projects even when barriers (for example, dunes or levees) separated the projects from the wetlands.

With its decision in this case, SCOTUS reverted back to Scalia’s majority approach to define WOTUS from the 2006 Rapanos case.

Opponents of the decision have been vocal in their criticism.

“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands,” Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a press release. “The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price.”

According to Forbes, President Joe Biden called the decision an “attack” on the EPA.

With the decision pulling back federal wetland protection, one question that arises is whether states will fill the gap.

“Many states have not adopted regulatory protections for waters that are outside the scope of [WOTUS],” adds the Cobb County Courier article. “In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.”

The decision also sends the EPA back to square one for regulations using the WOTUS definition.

Chevron implications

For many analysts, the most concerning question resulting from the decision is what the future implications for the Chevron deference will be.

This ruling “comes just five months after the EPA and the [Corps] finalized an updated definition based on scientific and technical recommendations,” says Inside Climate News. “But today’s ruling will send the EPA ‘back to the drawing board to revise their definition in light of what the court ruled,’” said Jonathan Adler, a professor of environmental, administrative, and constitutional law at Case Western Reserve University. “It appears stricter than the Rapanos decision, with which there was at least some talk of eligibility for so-called Chevron deference, he noted. This is a doctrine of judicial deference that requires a federal court to defer to the relevant agency’s reasonable interpretation of an ambiguous statute. ‘But I don’t see that kind of wiggle room in [Justice] Alito’s decision.’”

“That longstanding principle is that courts are to grant agencies deference—known as [the] Chevron deference—when the agency interprets its own statutes,” a Stanford Law School blog by David Freeman Engstrom and John E. Priddy notes. This deference holds that federal agencies should be allowed to make regulations without court interference.

SCOTUS’s June 2022 decision in West Virginia v. EPA was already characterized as a “full-scale frontal assault” on the Chevron deference by depending on the “major questions” doctrine, which requires agencies to point to clear congressional authority in making regulatory actions.

There’s another case on the SCOTUS 2023/2024 docket that’s expected to clarify the laws regarding future use of the Chevron deference.

“The case, Loper Bright Enterprises v. Raimondo, involves a rulemaking by the National Marine Fisheries Service that requires commercial fishing boats to carry enforcement agents from the NMFS whose job is to police and prevent over-fishing, forcing the fishermen to pay the costs of the agents, including their travel expenses and salaries,” says Forbes.

“The plaintiff in the case is asking the Court to rule against the NMFS’s ability to regulate in such an apparently abusive manner, effectively rejecting the Chevron deference. This is a matter of great concern to advocates of the Green New Deal and the Biden regulatory agenda that seeks to incorporate many of its elements, given that so many aspects of that agenda require aggressive interpretations of environmental statutes like the [CWA], Clean Air Act and National Environmental Policy Act by the EPA and other federal regulatory agencies.”

Takeaways

Vinson & Elkins LLP summarizes the key takeaways from the Sackett decision as follows:

• The “significant nexus” test is dead. “In Sackett, the Court explicitly criticized and seemingly rejected the open-ended factors and vague concepts embedded within the ‘significant nexus’ and ‘similarly situated’ concepts as too ‘freewheeling’ to give adequate notice to landowners of their obligations under the CWA.”
• Clarity. “The Court in Sackett repeatedly cited the need for certainty and clarity about the reach of federal jurisdiction given the CWA’s harsh penalties for even inadvertent violations. The new test thus attempts to frame a more definite and self-explanatory scope of covered ‘waters. …’”
• Adjacent versus adjoining. “The test laid out in the opinion limits federal wetlands jurisdiction to areas with a continuous surface connection to ‘waters,’ essentially requiring a wetland to be physically touching a covered water to be jurisdictional. In the view of the four concurring Justices … the majority’s test is too narrow, since ‘adjacent’ and ‘adjoining’ have distinct meanings. … The principal concurrence also found relevant that for 45 years and across eight presidential administrations of different political parties, the agencies have consistently asserted jurisdiction over these types of adjacent, but not physically adjoining or continuously connected, wetlands. The Court [explained] that [adjacent] wetlands are subject only to state law, given the CWA’s express protections of the states’ primary responsibilities and rights to plan the development and use of their land and water resources.”
• Fair notice and state primacy. “[T]he Court cited fair notice concerns and federalism principles reserving state authority over land and water regulation. The Court explained that because CWA provides both civil and criminal penalties for certain violations, it implicates ‘the due process requirement that penal statutes be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited.’ And the Court cited the CWA’s express reservation of rights of states to regulate in this area, noting that an expansive construction of CWA would run afoul of state primacy.”
• Future legal battles. Applying the “continuous surface connection” test remains ambiguous. “Areas of disagreement and uncertainty may include deciding what time periods and precipitation conditions are used to determine if a wetland has a ‘continuous’ surface water connection to a downstream water, and how ‘relatively permanent’ or ‘continuously flowing’ a water body must be to trigger federal jurisdiction.”

Despite the dire predictions and political posturing, many analysts believe the Sackett decision brings much-needed clarity for the scope of federal authority under the CWA.

“Under Sackett, certain areas will no longer be considered federal wetlands, and some development projects on land containing previously jurisdictional wetlands may no longer require federal CWA permits,” Vinson & Elkins adds. “But Sackett does not eliminate all federal CWA protections for wetlands. Instead, it clarifies federal jurisdiction and ensures state primacy over wetlands that are not closely tied to traditional navigable waters. As a practical and legal matter, the focus may now naturally turn to state and local regulation of such activities, as under Sackett, states retain substantial authority to regulate wetlands falling outside of federal jurisdiction, as well as associated waters.”