By Kerry Shapiro, Daniel Quinley and Aaron Boudaie
On May 25, 2023, the United States Supreme Court issued its ruling in Sackett v. Environmental Protection Agency, narrowing the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The court held that the EPA’s authority under the CWA extends only to wetlands and permanent bodies of water with a “continuous surface connection” to “traditional interstate navigable waters.”
Sackett addressed the scope of EPA’s authority to regulate wetlands under the CWA, which generally prohibits discharging pollutants into “the waters of the United States.” 33 U.S.C. §1362(7). The Sacketts petitioned the Supreme Court for review of the Ninth Circuit’s decision upholding the scope of EPA’s authority. The Sacketts had purchased a lot upon which they planned to build a home and began backfilling this lot with dirt in preparation. However, the EPA sought to exercise jurisdiction, based on the assertion that the lot contained wetlands and backfilling it violated the CWA. At issue for the Court was whether these wetlands were, in fact, “waters of the United States” subject to regulation under the CWA.
The Supreme Court’s decision resolves ambiguity in the CWA over the meaning of “waters of the United States” within the context of the statute. Justice Alito, in his opinion, described the current confusion stemming from the ambiguity of the CWA’s language: “[W]hat does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”
This jurisdictional ambiguity has existed, in part, since the plurality split in the Court’s decision in Rapanos v. United States (2006) 547 U.S. 715, which articulated two tests for lower courts to use in determining whether the CWA applies: Justice Scalia’s bright-line rule, covering only wetlands next to “relatively permanent, standing or continuously flowing bodies of water”; and Justice Kennedy’s broader interpretation, protecting wetlands that were part of a “significant nexus” with a navigable body of water. Continue reading