SCOTUS narrows interpretation of “waters of the United States” subject to the Clean Water Act

By Gary Taylor

Sackett v. U.S. Environmental Protection Agency

United States Supreme Court, May 25, 2023

The Sacketts purchased property near Priest Lake, Idaho and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency (EPA) informed the Sacketts that their property contained wetlands, and that their backfilling violated the Clean Water Act (CWA). The CWA prohibits discharging pollutants into “the waters of the United States,” and the EPA classified the wetlands on the Sacketts’ lot as waters of the United States because they were adjacent to a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day. The Sacketts sued, alleging that the wetlands they were backfilling were not “waters of the United States.” The District Court entered summary judgment for the EPA, and the Ninth Circuit affirmed, finding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts’ wetlands satisfy that standard.

The Supreme Court began with a recognition of the “persistent problem” federal agencies and courts have had in defining “the waters of the United States.” During the period relevant to this case, the two federal agencies charged with enforcement of the CWA—the EPA and the Army Corps of Engineers—similarly defined “the waters of the United States” to include “all . . . waters” that “could affect interstate or foreign commerce,” as well as “wetlands adjacent” to those waters. “Adjacent” was defined to mean not just “bordering” or “contiguous,” but also “neighboring.” Agency guidance instructed officials to assert jurisdiction over wetlands “adjacent” to non-navigable tributaries when those wetlands had “a significant nexus to a traditional navigable water.” A “significant nexus” was said to exist when “ ‘wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity’ ” of those waters. Field agents were told to consider a wide range of open-ended hydrological and ecological factors.

In the interest of preserving your patience I will cut to the chase. After a lengthy review of the history of the CWA, agency rule-making on the Act, and Supreme Court interpretations thereof, the Court rejected the agencies’ “significant nexus” test as including more than was the understood scope of the CWA. Under the agencies’ current rule, traditional navigable waters, interstate waters, and the territorial seas, as well as their tributaries and adjacent wetlands, are waters of the United States. Finding a significant nexus continues to require consideration of a list of open-ended factors. By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.

The Court held that an interpretation of “navigable waters” that accords with how Congress has employed the term “waters” elsewhere in the CWA and in other laws is “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ” The EPA’s insistence that “water” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands’ ” proves too much. This does not mean that no wetlands could ever qualify as “waters of the United States.” Interpreting section 1344(g)(1) of the CWA, the Court concludes that for wetlands to be “included” within “waters of the United States,” these wetlands must qualify as “waters of the United States” in their own right, i.e., be indistinguishably part of a body of water that itself constitutes “waters” under the CWA, rather than be “adjacent to” “waters of the United States. Thus to be included the wetlands must have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between where the waters end and the wetlands begin.

Because the Sacketts’ wetlands were merely “adjacent to” (in the sense that they are in the same neighborhood as) what is described as an “unnamed tributary” (on the other side of a 30-foot road) which feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, a navigable water body, those wetlands are clearly distinguishable from any waters covered by the CWA.

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