U.S. Supreme Court Limits EPA and the Corps’ Authority to Regulate Wetlands as Waters of the United States (WOTUS)
On May 25, 2023, a majority opinion of the Supreme Court of the United States (SCOTUS) in Sackett v. EPA et al., authored by Justice Alito and joined by Justices Thomas, Roberts, Gorsuch and Barrett, held that the authority of the Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) to regulate wetlands pursuant to the Clean Water Act (CWA) is limited to adjacent wetlands that are “indistinguishable” from streams, oceans, rivers and lakes that are considered waters of the United States due to a continuous surface connection. Justice Kavanaugh filed an opinion concurring in the Judgment only, which was joined in part by Justices Sotomayor, Kagan and Jackson. The concurring opinion asserts the majority’s holding is too narrow and replaces the plain language of the CWA with alternative language that ignores the protective intent of the CWA.
Background of the Clean Water Act and Scope of Federal Jurisdiction over WOTUS
The CWA was enacted in 1972 after the United States Congress had concluded that the Rivers and Harbours Act of 1899 (the Refuse Act) and the Federal Water Pollution Control Act of 1948 (FWPCA) were inadequate in controlling pollution of the nations’ water ways. The CWA’s purpose was to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Section 301 of the Act prohibits the discharge of any pollutant by any person except as in compliance with the Act, including the permitting programs established by Section 402 (pollutant discharges) and Section 404 (dredged or fill material discharges). Permitting under Section 402 is overseen by the Environmental Protection Agency (EPA). The U.S. Army Corps of Engineers implements the Section 404 permitting program, under the guidance of EPA.
The decision in Sackett was preceded by a line of SCOTUS decisions addressing the scope of CWA’s protection of wetlands. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Corps’ asserted authority under the CWA over wetlands that abutted a navigable waterway. The Bayview Court expressed concern that wetlands seemed to fall outside “traditional notions of waters.” However, the Court deferred to the Corps, reasoning that the transition from water to solid ground is not necessarily or even typically an abrupt one. Notably, the Court relied on legislative history from both the 1972 CWA and the 1977 Amendments. The Court found that Congress had essentially acquiesced in the Corps’ interpretation when it considered, but ultimately abandoned, proposed legislation in 1977 that would have narrowed the scope of “navigable waters” covered by Section 404. The Court specifically reserved the question of the Corps’ authority to regulate wetlands that are not adjacent to bodies of open water.
Thereafter in 1986, the Corps promulgated a final rule that included what came to be known as the “Migratory Bird Rule,” providing that that its CWA jurisdiction included intrastate waters that are used as habitat for migratory birds and endangered species, as well as waters used to irrigate crops sold in interstate commerce. However, in 2001, SCOTUS narrowed the scope of the Corps’ jurisdiction in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (“SWANCC”), 531 U.S. 159 (2001). The SWANCC Court disagreed with the Corps’ argument that ecological interests alone supported its jurisdiction over ponds located exclusively in Illinois, and held that the CWA does not extend to intrastate ponds that are not adjacent to open water.
In Rapanos v. United States, 547 U. S. 715, four Justices, in a plurality opinion authored by Justice Scalia, concluded that the CWA’s coverage did not extend beyond two categories: 1) certain relatively permanent bodies of water connected to traditional interstate navigable waters; and 2) wetlands with such a close physical connection to those waters that they were as a practical matter indistinguishable from WOTUS. Four other Justices agreed with the Government’s determination that the wetlands at issue were covered under the CWA. Notably, Justice Kennedy, in his own concurring opinion, concluded that jurisdiction under the CWA requires a “significant nexus” between wetlands and navigable waters and that such a nexus exists where “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of those waters. Justice Kennedy’s opinion elaborated that the significant nexus standard is met if the wetlands either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.
Following Rapanos there have been a series of federal rules promulgated by three different administrations significantly changing the definition and scope of WOTUS, leading to confusion and inconsistency. In 2015, the Obama administration issued a final rule (the “2015 Rule”) replacing the 1986 Rule, which broadened the definition of WOTUS to include all tributaries as “jurisdictional by rule,” but did not provide clarity on the upstream extent of jurisdiction. In October of 2019, the Trump administration repealed the 2015 Rule and issued another rule (the “2019 Rule”), reinstated the 1986 Rule, and instructed agencies to implement an interpretation of WOTUS consistent with Justice Scalia’s more restrictive definition in Rapanos, which focused on relatively permanent, standing or continuously flowing bodies of water. In January 2020, the Trump administration issued a further final rule (the “2020 Rule”) with a WOTUS definition based primarily on Justice Scalia’s more limited test in Rapanos. In January of 2023, the Biden administration issued another final rule (the “2023 Rule”) defining waters of the United States as: traditional navigable waters, the territorial seas and interstate waters (“paragraph (a)(1) waters”); impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”) and tributaries to traditional navigable waters, the territorial seas, interstate waters or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”). The 2023 Rule further defines wetlands included within the ambit of WOTUS as “wetlands adjacent to paragraph (a)(1) waters, wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments, wetlands adjacent to tributaries that meet the relatively permanent standard, and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard.”
Majority Opinion in Sackett v. EPA
The majority opinion in Sackett v. EPA limited the jurisdiction of EPA and the Corps to regulate pollution of wetlands. The Court overruled the district court and Ninth Circuit, and ruled that the CWA’s use of the term “waters” in 33 U.S.C. §1362(7) refers only to what Justice Scalia described in his Rapanos plurality opinion as geographical features that are ordinarily described as streams, oceans, rivers, and lakes and to adjacent wetlands that are indistinguishable from those bodies of water due to a continuous surface connection. The Court concluded that in order to assert jurisdiction over an adjacent wetland under the CWA, a party must establish 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
The majority reasoned that even though §1344(g)(1) of the CWA refers to “waters of the United States and adjacent wetlands,” this provision alone cannot answer which wetlands are regulated under the CWA because it is not the operative provision that defines the Act’s reach. The majority stated that the reference to adjacent wetlands in §1344(g)(1) must be read in harmony with “the waters of the United States” in §1362(7), which is the actual term the Court was tasked with interpreting. The majority stated that because “adjacent wetlands” in §1344(g)(1) are included within WOTUS, these wetlands must qualify as WOTUS in their own right. In other words, wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby. The Court reasoned that it could not rely on Congress’s language in §1344(g)(1), which addresses state permitting programs, to conclude that Congress intended “navigable waters” in § 1362(7) to mean “waters of the United States and adjacent wetlands.”
The Concurring Justices (Kavanagh, Sotomayor, Kagan and Jackson) agreed with the Court’s decision not to adopt the “significant nexus” test for adjacent wetlands as set forth by Justice Kennedy in Rapanos. However, they disagreed with the majority’s new “continuous surface connection” test, stating that the new test is overly narrow and replaces the meaning of “adjacent” as used explicitly by Congress in the plain text of the CWA, with “adjoining,” meaning that the wetland has a continuous surface connection with a WOTUS. As stated by Justice Kavanaugh, “[t]he ordinary meaning of the term ‘adjacent’ has not changed since Congress amended the Clean Water Act in 1977 to expressly cover ‘wetlands adjacent’ to waters of the United States. Then as now, ‘adjacent’ means lying near or close to, neighboring, or not widely separated.”
The Concurring Justices all agreed that a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, etc. Citing to United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985), these Justices recognized the danger of not protecting the nation’s wetlands as Congress intended, as wetlands “serve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers and streams.” Accordingly, these Justices concurred only with the judgment of the majority in that the wetlands on the Sacketts’ property did not fall into either of those categories and therefore were not covered under the Act.
What Sackett Means for the Arid West
The majority of justices that make up the present SCOTUS have indicated that they are willing, despite consequences contrary to or that ignore the express protective intent of the CWA, to go beyond the plain language of federal legislation in limiting federal jurisdiction in favor of private property rights. While wetlands are less common in the arid West than in other parts of the U.S., wetlands are present. Seasonal wetlands in particular are typical in the Southwest but may be isolated, and those that are “adjacent” to WOTUS may not now be considered “adjoining” and, thus, not federally regulated.
Notably, the preamble to the current 2023 Rule notes that certain adjacent wetlands and intermittent tributaries would be considered jurisdictional – specifically “adjacent wetlands in the Mountain West that are similarly situated with dozens of other adjacent wetlands and several tributaries, have the capacity to store high volumes of floodwaters and to store and process nutrients that would otherwise reach a downstream paragraph (a)(1) water, thereby reducing flooding and the potential for algal blooms in the paragraph (a)(1) water, and that provides strong functions to a paragraph (a)(1) water given its landscape position in relation to the tributary network and the paragraph (a)(1) water.” The 2023 Rule attempted to protect such bodies of water that are “relatively permanent” and that have a material influence on the chemical, physical, or biological integrity of traditional navigable and interstate waters based on site-specific hydrologic and other factors. Following the majority opinion in Sackett v. EPA, the test now ignores the CWA’s express protective objectives and focuses solely on the simple bright-line of whether or not a wetland “adjoins” relatively permanent waters – i.e., whether the wetland is itself relatively permanent or has a continuous surface connection with a relatively permanent water.
Litigants will likely now turn their attention to the 2023 Rule. The impact of the Sackett decision on the 2023 Rule has yet to be determined, but it arguably can be limited to apply only narrowly to wetlands and not to tributaries. For the Southwest in particular, that would preserve much of the value of the 2023 Rule in providing for case by case review of the material influence of intermittent and ephemeral waterways on the integrity of traditional navigable waters, as expressly intended by the CWA.