Published since 1946
Supreme Court Limits Federal Safeguards for Wetlands Under Clean Water Act
The Supreme Court ruled on May 25 in a case that questioned the Environmental Protection Agency’s (EPA) ability to regulate wetlands under the Clean Water Act. In a unanimous decision, the Supreme Court affirmed an Idaho couple’s ability to build a home on their property that is a few hundred feet from Priest Lake, reversing a decision made by the U.S. Court of Appeals for the 9th Circuit that sided with the EPA. However, the court was also split within the ruling on what is known as the “significant nexus” test to interpret whether wetlands are connected to navigable waters. The 5-4 majority ruling found that the EPA’s authority applied only to those wetlands that are indistinguishable from and have a “continuous surface connection” to larger lakes, oceans, streams, and rivers. The decision is considered a win for small property owners but significantly reduces protections for wetlands.
The case, Sackett v. Environmental Protection Agency, centers on property owned by Chantell and Michael Sackett near Priest Lake, Idaho. After obtaining permits and beginning construction on their home in 2007, they were informed by the EPA that their property contained wetlands and they needed federal permits to continue work. Construction of the home has been on hold ever since while the Sacketts appealed an EPA compliance order threatening tens of thousands of dollars in fines through the courts. All nine of the court’s justices were unanimous in the decision that the Clean Water Act does not apply to the Sackett’s property and that the previous interpretation of “waters of the U.S.” was unworkable. The justices differed, however, in the opinion that having a continual surface connection is the test to determine if there is a “significant nexus” for water bodies to fall under the EPA’s regulatory authority.
In his opinion concurring only with the judgment, Justice Brett Kavanaugh agreed that the Sackett property does not meet the significant nexus test, but that the majority had “rewritten the Clean Water Act” and ignored its text as well as “45 years of consistent agency practice.” Kavanaugh noted that eight different administrations since 1977 had recognized such wetlands as being protected. The statutory text, Kavanaugh wrote, “does not require a continuous surface connection between those wetlands and covered waters.”
“…The Federal Government has long regulated the waters of the United States, including adjacent wetlands… the decisive point here is that the term “adjacent” in this statute is unambiguously broader than the term “adjoining.” On that critical interpretive question, there is no ambiguity. We should not create ambiguity where none exists. And we may not rewrite “adjacent” to mean the same thing as “adjoining,” as the Court does today,” Kavanaugh wrote, continuing:
“The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court’s rewriting of “adjacent” to mean “adjoining” will matter a great deal in the real world. In particular, the Court’s new and overly narrow test may leave long-regulated and long- accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States. For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”
Kavanaugh insisted that the lands to be regulated did not have to physically touch a nearby waterway to constitute “waters of the United States,” but that they could include wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.”
He concluded: “The wetlands on the Sacketts’ property do not fall into either of those categories and therefore are not covered under the Act as I would interpret it. Therefore, like the Court, I would reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand for further proceedings. But I respectfully concur only in the Court’s judgment.”
Chief Justice Samuel Alito countered the minority statements in the Opinion of the Court, stating: “We have analyzed the statutory language in detail, but the separate opinions pay no attention whatsoever to §1362(7), the key statutory provision that limits the CWA’s geographic reach to “the waters of the United States.” Thus, neither separate opinion even attempts to explain how the wetlands included in their interpretation fall within a fair reading of “waters.” Textualist arguments that ignore the operative text cannot be taken seriously."
Courts and regulators have been grappling for decades over how much of a connection with a waterway a property must have in order to require a permit, with the Supreme Court issuing a ruling (Rapanos v. United States) in 2006 that led to further uncertainty. That interpretation extended federal protections to “relatively permanent” waters. An Obama-era rule attempted to restore federal oversight to 60% of the nation’s waters in 2015, but this was struck down in nearly 30 states and later rescinded by former President Trump’s Navigable Waters Protection Rule. The Supreme Court decision comes just five months after the EPA and the Army Corps finalized an updated definition based on scientific and technical recommendations. But the ruling will send the EPA back to the drawing board to revise their definition considering what the court ruled.
Reaction to the Supreme Court’s decision has been varied. Most within the conservation community have raised concern about the potential impacts of the decision on wetlands conservation.
“For 50 years the Clean Water Act has been instrumental in revitalizing and safeguarding drinking water sources for people and wildlife, wetlands for flood control, and habitats that sustain our wildlife heritage,” said Jim Murphy, director of legal advocacy for the National Wildlife Federation. “Federal protections that don’t depend on local politics or regional polluter influence are essential to vulnerable and disadvantaged communities nationwide. The court’s ruling removes these vital protections from important streams and wetlands in every state. We call on both Congress and state governments to step in, plug the gap, and protect our threatened waters and the people that depend on them.”
However, the Property and Environment Research Center countered that the ruling could inspire new opportunities to incentivize voluntary conservation efforts on private lands.
“Today’s ruling brings significant clarity to federal wetlands regulation but also signals the need to ramp up voluntary wetlands conservation,” noted PERC Vice President of Law and Policy Jonathan Wood. “For decades, uncertainty over the extent of Clean Water Act regulation has made wetlands a liability for private landowners. All nine justices rejected the prior vague standard in favor of relatively narrow understandings of federal authority over private property. Now that fewer wetlands will be regulatory liabilities for private landowners, it’s time for voluntary conservation efforts to make wetlands an asset to landowners.”