Noah Perch-Ahern

Fax 310-201-4441

Supreme Court Narrows EPA’s Authority to Protect Wetlands under Clean Water Act

In a highly anticipated and consequential decision, the U.S. Supreme Court stripped the Environmental Protection Agency’s (EPA) authority to regulate an estimated half of the nation’s wetlands under the Clean Water Act (CWA). The May 2023 ruling in Sackett v. Environmental Protection Agency could mean that millions of acres of land will no longer be subject to protection under the CWA. Responsibility for protecting wetlands may now shift to individual states, with significant differences across them.

Although all nine justices agreed that the homeowners who sued EPA should not have been subject to the agency’s oversight, the justices were split on the proper test for determining whether a wetland is protected by the CWA.

In a majority opinion written by Justice Alito, the court announced the following test for determining the scope of protected wetlands under the CWA: the wetland must have a “continuous surface connection” with Waters of the United States, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” In effect, the wetlands must directly adjoin traditional navigable waters or their tributaries, such as a river, lake, or ocean.

The Alito majority opinion revives the proposed rule articulated in former Justice Scalia’s plurality opinion in Rapanos v. United States, which stated that the CWA should apply to “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.” Critically, the Court rejected the “significant nexus” test articulated by Justice Kennedy’s concurrence in Rapanos, which many if not most lower courts had since relied on in determining what wetlands are protected under the CWA.

Justices Kavanaugh and Kagan issued separate concurring opinions critiquing the majority’s test. Justice Kavanaugh warned that the majority opinion would harm the federal government’s ability to address significant issues such as water pollution and flood control: “by narrowing the act’s coverage of wetlands to only adjoining wetlands… the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” Justice Kagan, citing the Court’s recent West Virginia v. EPA decision narrowing EPA’s ability to limit emissions from power plants, asserted that the Court has appointed “itself as the national decision-maker on environmental policy.”

The Sackett decision represents a remarkable culmination of a legal saga spanning nearly two decades. The issue began in 2004 when an Idaho couple attempted to build a home on “soggy” land they had recently purchased near Priest Lake in Idaho’s panhandle. Shortly after the Sacketts began construction on their property, they received an order from EPA requiring them to restore the land to its original state or face heavy financial penalties. The Sacketts responded by suing EPA. The lawsuit first reached the Supreme Court on the issue of whether EPA’s order was a final agency action subject to judicial review. The Court ruled that the order was subject to judicial review and remanded the case. The Ninth Circuit then held that the Sacketts’ property was a protected wetland under the CWA – relying on the Court’s “significant nexus” test in Rapanos.

As referenced above, the Court’s latest decision deals a new blow to EPA’s authority after another decision last year that limited the agency’s authority to address climate change and air pollution under the Clean Air Act in West Virginia v. EPA. The Court’s decision will likely also represent a setback for EPA’s recent rulemaking regarding wetlands. Just recently, in December 2022, EPA issued a final rule that articulates the agency’s definition of “Waters of the United States” (WOTUS) – and the rule is already mired in legal challenges in several States. The Sackett decision bolsters those legal challenges and may prompt EPA to withdraw and reissue the final rule to work around the Court’s decision.

The Biden Administration reacted to the Sackett decision with disagreement. President Biden called the decision “disappointing,” stating that it “upends the legal framework that has protected America’s waters for decades” and “defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakers from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.” Similarly, EPA Administrator Michael Regan said he was “disappointed by today’s Supreme Court decision that erodes longstanding clean water protections” and that EPA will “carefully review” the decision and “consider next steps.”

With its decision in Sackett, the nation’s highest court upended decades of jurisprudence and rulemaking regarding protected wetlands under the Clean Water Act. It calls into question the viability of the EPA’s 2022 WOTUS rule and renders a large body of case law invalid. Where state regulations do not already exist, this decision leaves a new space for states to pick up the slack and promulgate legal protection. In the meantime, a vast amount of wetlands formerly considered protected by the Clean Water Act will no longer be subject to federal jurisdiction.