Supreme Court limits federal authority over wetlands with stricter test

By Alvin Wu
Domestic Affairs
Supreme Court limits federal authority over wetlands with stricter test

An illustration depicts the Supreme Court alongside wetlands. ZFJ/Violet Bak

May 28 (ZFJ) — The federal government can only regulate wetlands with “a continuous surface connection” to adjacent “waters of the United States” under the Clean Water Act (1972), ruled the Supreme Court on Thursday, May 25, in Sackett v. EPA (21-454).

The CWA is the primary federal law regulating water pollution and prohibits the “discharge of any pollutant,” including “chemical wastes,” “rock,” and “sand,” into “navigable waters,” defined as “the waters of the United States, including the territorial seas.” The Environmental Protection Agency and Army Corps of Engineers are charged with the Act’s enforcement.

The stricter test, imposed in a 5-4 vote, overturned Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States (04-1034), which allowed wetlands to be regulated if they had a “significant nexus” to nearby waters.

We hold that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.”

— Justice Samuel Alito, majority opinion

Critics said the significant nexus test was excessively broad and vague, exposing landowners to criminal and civil penalties for mundane activities, like moving dirt. Furthermore, challenging EPA decisions is expensive and time-consuming, so most landowners chose to avoid attempting construction on their properties.

The decision is a win for Michael and Chantell Sackett, who have been fighting the government since 2007. The EPA originally halted their construction of a house on their property near Priest Lake, Idaho, when they began backfilling the lot with dirt. The District Court entered summary judgment in favor of the EPA, and the 9th U.S. Circuit Court of Appeals affirmed. Reversing the 9th Circuit’s decision, the Court has remanded the case.

Justice Samuel Alito delivered the opinion of the Court, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.

“We hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” wrote Alito. The presence of a continuous surface connection, he said, makes it “difficult to determine where the ‘water’ ends and ‘wetland’ begins.”

In his concurring opinion, Thomas, joined by Gorsuch, agreed with the continuous surface connection test but sought to limit the scope of the terms “navigable” and “of the United States.” He noted that the federal government is limited by the Commerce Clause, which gives Congress the right to regulate commerce.

“This federal authority, however, does not displace States’ traditional sovereignty over their waters,” wrote Thomas.

In her concurring opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, disagreed with the continuous surface connection test, arguing that it “disregards the ordinary meaning of ‘adjacent,’” narrowing the CWA’s scope.

“One house is adjacent to another even when a stretch of grass and a picket fence separate the two,” wrote Kagan.

Kagan also recognized wetlands’ environmental role, pointing out that they function in flood control, even when separated by a barrier like a dune or levee. She criticized the Court for overreaching its authority, writing “The Court substitutes its own ideas about policymaking for Congress’s.”

The Court’s mistake is straightforward: The Court essentially reads “adjacent” to mean “adjoining.”

— Justice Brett Kavanaugh, concurring opinion

In his concurring opinion, Justice Brett Kavanaugh, joined by Sotomayor, Kagan, and Jackson, agreed with overturning the significant nexus test but disagreed with the continuous surface connection test, distinguishing between “adjacent” (per the statutory text’s wording) and “adjoining” wetlands. Thus, he argues that wetlands separated by natural or artificial barriers should also be protected under the CWA, which he points out is consistent with the interpretation of all eight presidential administrations since the law came into effect.

“The Court’s mistake is straightforward: The Court essentially reads ‘adjacent’ to mean ‘adjoining,’” he wrote.

“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,” Kavanaugh said.

He also noted the ecological significance of wetlands.

“The scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood control,” he wrote.

The plaintiffs’ attorney was satisfied with his win.

“The Court’s ruling returns the scope of the Clean Water Act to its original and proper limits,” said Damien Schiff, a senior attorney at Pacific Legal Foundation who represented the Sacketts, in a press release. “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers.”

The Court’s decision was unfortunate news for the EPA and environmental activists.

“I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” said EPA Administrator Michael S. Regan in a statement. He added that the EPA will “carefully review the Supreme Court decision and consider next steps.”

Earthjustice, a nonprofit environmental advocacy organization, said that half of the 118 million acres of wetlands in the U.S. stand to lose protection as a result of the Court’s decision.

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