Better Late Than Never: Decades of Litigation over Clean Water Act Leads to Supreme Court Reversal

Sackett v. EPA, 143 S. Ct. 1322 (2023).

Authored by: Emma Aucoin

           In Sackett v. EPA, the Supreme Court addressed a question which has served as the catalyst for decades of litigation and ambiguity concerning what qualifies as “waters of the United States” under the Clean Water Act (CWA). Ultimately, the Court held that the CWA only encompasses wetlands with a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are indistinguishable from those waters.”[1] In doing so, the Court upheld the plurality opinion of Rapanos v. United States which illustrated the test to be used when considering the CWA’s breadth:

This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] … ’water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”[2]

           The beginning of what would become a long and litigious journey arose in 2004 when Petitioners Michael and Chantell Sackett began the process of backfilling their property with dirt and gravel to prepare for the construction of their future home. The Environmental Protection Agency (EPA) soon after sent a compliance order which charged the Sacketts with restoring their backfilled property because it contained “protected wetlands.” The order threatened the Sacketts with a daily penalty of $40,000 if they did not comply.

           The Sacketts filed suit and argued that the wetlands on their property were not “waters of the United States,” thus no violation of the CWA occurred. After seven years of various court proceedings, the District Court entered summary judgment for the EPA. The Ninth Circuit Court of Appeals affirmed the lower court’s judgment and held “the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.”[3] Finally, after nearly two decades from the Sacketts’ initial violation, the Supreme Court granted certiorari to set forth the proper test when determining whether certain wetlands are “waters of the United States” under the CWA. In order to reach a conclusion on the matter, the Court first reviewed the CWA’s history and then analyzed the plain text of the CWA to determine its true geographical reach.

           At the time of the Sacketts’ alleged violation, the EPA considered the phrase “waters of the United States” to include not only waters that could affect interstate or foreign commerce, but also wetlands adjacent to those waters. The agency reconciled this extension of authority by only asserting its jurisdiction “over wetlands ‘adjacent’ to non-navigable tributaries when those wetlands had a ‘significant nexus to a traditional navigable water.’”[4] Requiring this significant nexus test and implementing their broad interpretation of the CWA’s word choice, the agency theoretically placed almost all bodies of water in the country on their radar. In a post-Rapanos world, the EPA slowly but surely made it possible for nearly all waters and wetlands to be subjected to regulation under the significant nexus test which considered a multitude of hydrological and ecological factors. The implications of the Agency’s grasp on certain areas severely affected property owners due to the uncertainty of whether the property contained waters of the United States as seen through the wide lens of the EPA.

           The next point of discussion was focused on the CWA’s geographical reach. The Court agreed with the plurality opinion in Rapanos by concluding that the reach of the CWA extends “only to 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.’”[5] Justice Alito verified that Congress specifically chose the plural form of “waters,” when defining “navigable waters,” as the term typically refers to streams, oceans, rivers, and lakes. This interpretation directly aligns with Congress’ intention of tethering the CWA with “its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.”[6] By doing so, the EPA’s jurisdiction is properly limited and the States remain in primary control of their waters.

Here, the wetlands targeted by the EPA were adjacent to – otherwise described as “in the same neighborhood” – as an unnamed tributary that feeds into a non-navigable creek before reaching Priest Lake, a traditionally navigable body of water. The EPA used these properties in addition to other nearby wetlands to establish a significant nexus in accordance with its own phraseology of the CWA. The agency’s argument in the Sackett case asserted that the aforementioned properties in conjunction are capable of affecting the ecology of Priest Lake, thus qualifying the wetlands on the Sackett’s property as “waters of the United States.” The Court disagreed for a number of reasons, with the underlying principle being that the EPA’s interpretation of the CWA is inconsistent with the Act’s text and structure.

           Justice Alito first explains that the agency’s broad interpretation of the CWA through the use of its significant nexus test undermines the States’ authority to regulate their own waters. Moreover, the text of the CWA does not include the term “significant nexus” at all, which in turn means the EPA does not have a right to impose a test based upon it. Next, the Court asserts Congress’ responsibility according to the due process requirement to define statutes that are easily understood by the average lay person so as to discourage “arbitrary and discriminatory enforcement.”[7] However, the EPA’s interpretation does not clearly define what conduct is prohibited and therefore creates unnecessary criminal penalty implications.

           Despite additional arguments presented by the EPA alleging that Congress ratified its interpretation of the CWA, the Court nonetheless disagreed and provided multiple reasons which all lead back to the text of the CWA and its original, intended purpose. The Supreme Court issued its decision in favor of the Sacketts and called for reversal of the lower courts’ decisions on account of the wetlands on the Sacketts’ property being distinguishable from any covered waters. 

           Justice Thomas, with whom Justice Gorsuch joined, authored a concurrence worthy of discussion. With the intention to “pick up where the court leaves off,”[8] Justice Thomas took a step past defining the term “waters” by instead focusing on how the terms “navigable” and “of the United States” limit the reach of the CWA.

           Justice Thomas admonishes the EPA and Army Corps of Engineers’ “boundless standards” by re-stating the bottom line: the CWA’s interpretation must align with Congress’ traditional authority over “waters that are, were, or could be used as highways of interstate commerce.”[9] The agencies expanded their authority and interpretation of the CWA to what would essentially cover all waters in the United States, thereby disregarding the fact that navigability is “the touchstone of federal jurisdiction under the CWA.”[10] Not only does the Court’s opinion reinforce what was held in Rapanos, it also avoids the expansion of federal authority that has impeded the States’ right to govern their own waters.

           The concurrences highlight that this case exemplifies how the agencies’ delineation from the plain text of the CWA expands federal jurisdiction beyond the scope of Congress’ authority over commerce and navigation. Overall, the Supreme Court justices seemed to share a discontent with the agencies’ disregard for guidelines and made it a point to highlight that the CWA must only extend to Congress’ traditional jurisdiction over navigable waters.

           Despite the multiple concurrences, it is important to note that the entire Court agreed that the Agency exceeded its authority and unanimously reversed the Ninth Circuit’s holding.

[1] Sackett, 143 S. Ct. at *1344.

[2] Id. at *1341.

[3] Id. at *1332.

[4] Id. at *1331.

[5] Id. at *1336.

[6] Sackett, 143 S. Ct. at *1337.

[7] Id. at *1342.

[8] Id. at *1344.

[9] Id. at *1345.

[10] Id. at *1355.