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Sackett v. EPA: The Supreme Court Clarifies Clean Water Act Jurisdiction

Navigating Choppy Waters in a Complex Restructuring Background Decorative Image

On May 25, 2023, the Supreme Court of the United States issued its decision in Sackett v. EPA,1 clarifying and narrowing the reach of federal jurisdiction under the Clean Water Act (“CWA”). For decades, confusion has persisted about the scope of the key phrase “navigable waters” under the CWA, defined vaguely to include “waters of the United States,” or “WOTUS.” Two tests had emerged from a fractured 2006 Supreme Court opinion in Rapanos v. United States2 on how to determine if a stream, wetland, or other waterbody is subject to federal jurisdiction — with a four-Justice plurality agreeing that the CWA reaches waters with a continuous surface connection to a navigable water, and one Justice suggesting that the CWA reaches further, to include waters that have a “significant nexus” to a navigable water. 

Although the Biden administration’s recent WOTUS rule and many courts have relied heavily on the “significant nexus” test, the Sackett Court unanimously rejected that standard. The opinion for the Court, joined by five Justices, held that the CWA’s reach over “waters” encompasses only “those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes,” as well as wetlands that are “indistinguishable” from those waterbodies given the difficulty in discerning the exact transition point between waters and dry land, and that have a “continuous surface connection” to such waterbodies.

The opinion’s “continuous surface connection” test simplifies the scope of federal jurisdiction over wetlands by offering a definition that ties jurisdictional wetlands tightly to traditional navigable waters. The “continuous surface connection test” is applied to wetlands in two parts. First, the agency must show that the adjacent body of water is itself a water of the United States (i.e., a relatively permanent body of water connected to a traditional interstate navigable water, such as a lake, river, or stream). Second, the agency must show the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.

Although concurring in the judgment that the CWA does not reach the specific wetlands on the Sacketts’ property, four Justices found this test too narrow, criticizing the majority for concluding that the CWA does not reach to wetlands near, but not physically adjoining, a navigable water. The varying lines of reasoning laid out in the Court’s opinion and concurrences indicate that, going forward, the agencies and lower courts will still need to grapple with certain areas of disagreement and ambiguity regarding the application of the Supreme Court’s new “continuous surface connection” test.

What is a WOTUS and Why Does it Matter?

The CWA prohibits unpermitted discharges of pollutants from certain sources to “navigable waters,” defined as “the waters of the United States, including the territorial seas.” The CWA carries significant civil and criminal penalties, so anyone whose activities might introduce fill material into a WOTUS (for example, by crossing a small stream or wetland with a bulldozer or filling a wetland) may need to get U.S. Army Corps of Engineers (“Corps”) permission in a process that can be time-consuming and expensive — taking months or years and costing tens or hundreds of thousands of dollars. Waters that fall within CWA jurisdiction are also potentially subject to various other provisions and programs under the CWA, including discharge permits, water quality standards, total maximum daily loads, water quality certifications, and enforcement actions for illegal discharges.

The geographic reach of the CWA, as reflected in the WOTUS definition, is among the longest-running and most contentious issues in environmental law. The Corps and U.S. Environmental Protection Agency (“EPA”) have, independently and together, defined and redefined the WOTUS definition numerous times going back to 1973, and disagreements over the scope of federal jurisdiction under the CWA have filled hundreds of pages in the federal reports, including numerous trips to the Supreme Court (1985 in United States v. Riverside Bayview Homes3, 2001 in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”)4, and 2006 in Rapanos). As the intervening decades have shown, interpreting what the Supreme Court has said, and deciding how scientific evidence should inform legal and policy decisions about the reach of federal jurisdiction under the CWA, have made this a fertile ground for disagreement and litigation. Stability and predictability in the scope of federal jurisdiction have proven elusive. And the agencies have for decades relied on (in Supreme Court’s words) a “freewheeling inquiry that provides little notice to landowners of their obligations under the CWA,” and which relies on “a variety of open-ended factors that evolve as scientific understandings change.” Indeed, despite the EPA’s and the Corps’ 2008 guidance on how to implement Rapanos, confusion on the geographic extent of federal CWA jurisdiction led agencies to undertake multiple rulemaking efforts to create a workable definition of WOTUS. This includes rulemakings in 2015 under the Obama administration (the “Clean Water Rule” or “2015 Rule”), in 2020 under the Trump administration (the “Navigable Waters Protection Rule” or “2020 Rule”), and most recently in 2023 under the Biden administration (the “2023 Rule”). Despite these repeated efforts to clarify the definition of WOTUS, waves of litigation challenging each successive rule and injunctions barring the application of each definition have led to a geographic patchwork of applicability and a cloud of uncertainty over the reach of federal jurisdiction.

Against this background, the Supreme Court seeks to answer one question in its Sackett opinion: what is the proper test for determining whether wetlands are “waters of the United States” under the CWA?

Key Takeaways from Sackett

Death of “Significant Nexus” Hollows Out the Biden Administration’s 2023 Rule. As noted, not a single Justice defended the use of the “significant nexus” test, which forms the basis for the Biden administration’s 2023 Rule and has, since 2006, played a central role in rulemaking and litigation over the scope of the CWA. Although the 2023 Rule has been preliminarily enjoined in numerous states (and with regard to certain plaintiffs) as part of ongoing litigation, President Biden kept the 2023 Rule alive when, in April 2023, he vetoed Congress’s disapproval of the rule under the Congressional Review Act. However, the Sackett opinion’s evisceration of the “significant nexus” test strikes at a major component of the 2023 Rule and is likely fatal to categories of wetlands that rely on the significant nexus test.5 The 2023 Rule heavily relied on the “significant nexus” test in defining the scope of CWA in a wide range of contexts not limited to wetlands. Indeed, the 2003 Rule codified that standard explicitly by extending jurisdiction to waters that met either the Rapanos plurality’s “relatively permanent” standard or the “significant nexus” standard for tributaries, streams, wetlands, and intrastate lakes and ponds. The 2023 Rule also codified the agency practice since Rapanos of asserting authority to aggregate all “similarly situated” waters and their adjacent wetlands when making case-by-case decisions about jurisdiction. 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.

An Attempt at Bright Lines. 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” to mean those “relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” As to wetlands, the Court’s “continuous surface connection” standard effectively adopts a bright-line rule about geographic distance from covered waters — essentially stating that there can be zero distance between such a water and a jurisdictional wetland, such that it is difficult to discern where “waters” end and the wetlands begin. Attempts at bright-line distances are not new. For example, the 2015 Rule attempted to use set distances (covering areas found within 100 feet of the ordinary high water mark or within the 100-year floodplain and not more than 1,500 feet from the ordinary high water mark) to create jurisdictional boundaries so that landowners could easily understand the actual reach of CWA jurisdiction over wetlands and other areas not immediately recognizable as waters. However, challengers argued that the distances were arbitrary and did not hew closely to the then-operative concept of “significant nexus.” The Obama administration’s 2015 Rule was judicially enjoined in 28 states and eventually repealed and replaced by the Trump administration’s 2020 Rule.

Adjacent versus Adjoining Wetlands. 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 (as described in Justices Kavanaugh’s and Justice Kagan’s separate opinions), the majority’s test is too narrow, since “adjacent” and “adjoining” have distinct meanings. The result, they say, is that some long-regulated wetlands will now fall beyond the CWA’s reach, such as “wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.”6 The concurring Justices observe that such berms and barriers do not block all water flow, and are actually evidence of a regular connection between the water and wetland. Thus, in their view, the Court’s test improperly excludes waters that should qualify as “adjacent” even if they are not adjoining. However, the decision does not expressly address or resolve the application of this test in areas where a legal, permitted structure like a berm or dike has historically separated wetlands from other wetlands subject to the ebb and flow of the tide or from a navigable waterway. 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 itself, however, concludes that such wetlands fall outside “a fair reading of ‘waters’ [of the United States],” and explains that such 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. In adopting a narrower interpretation of CWA jurisdiction and rejecting the “significant nexus” standard, the 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.

Areas of Future Disagreement? While Sackett goes far to clarify the scope of CWA jurisdiction, some areas of disagreement and uncertainty are likely to persist. Going forward, the agencies and regulated parties must grapple with the concept of adjacency and how to implement the “continuous surface connection” test, both in case-by-case permitting efforts and potential future rulemakings. 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. The latter concerns are likely to be a significant issue in less water-rich areas, where flow may occur only during certain seasons or times of year, or where flow may be interrupted in times of drought. The agencies will presumably look to clarify what kinds of “adjacent wetlands” “are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.” For instance, Sackett may lead to litigation about whether wetlands that are “indistinguishable” from other waters during a wet season, but not connected during a dry season are jurisdictional, or if a seasonal connection is insufficient.

Final Thoughts

Notwithstanding some remaining areas of uncertainty, Sackett provides welcome and long overdue clarity for the scope of federal jurisdiction under the CWA. Indeed, the decision seems to address a number of the concerns raised by numerous Justices in the 17 years since the Court’s last effort to address this thorny issue.7 In the 2016 Hawkes decision, three Justices expressed concern that the CWA’s reach remained notoriously unclear, that the consequences to landowners for even an inadvertent violation can be crushing, and that the CWA “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

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. 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.

1 598 U.S. —- (2023).

2 547 U.S. 715 (2006).

3 474 U.S. 134 (1985).

4 531 U.S. 162 (2001).

5 The preamble to the 2023 Rule contains a severability clause (see 88 Fed. Reg. at 3135) so that the portion of the rule that is unaffected by the Supreme Court’s decision will continue to function. The Biden administration’s intent was for each separate category and subcategory of the WOTUS definition to operate independently.

6 Kavanaugh Concurrence at 6.

7 E.g., U.S. Army Corps of Eng’rs v. Hawkes, 574 U.S. 590, 602–03 (2016) (Kennedy, J., concurring, joined by Thomas and Alito, J.J.).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.