On May 25, 2023, the United States Supreme Court issued a much-anticipated decision surrounding the Environmental Protection Agency’s (EPA) wetland authority under the Clean Water Act (CWA). The 9–0 ruling soundly rejected the EPA’s view of federal authority over wetlands under the CWA and created a far narrower test to determine what bodies of water fall under the CWA’s scope.
The decision in Sackett v. EPA is the culmination of a 15-year dispute between a couple in Priest Lake, Idaho, and federal agencies (the EPA and the US Army Corps of Engineers) over whether wetlands on the couple’s property are regulated under the CWA. Although the court ruled that the wetlands at issue were not subject to the CWA and that the “significant nexus” test originating from the decision in Rapanos v. United States no longer applies, the court split on how much to limit federal jurisdiction.
A 5–4 majority of the court held that only those wetlands with a “continuous surface water connection” to traditionally navigable waters, such as larger streams, lakes, and rivers, fall under the CWA’s scope. This holding represents a significant departure from the EPA’s interpretation of its authority and is likely to reduce federal jurisdiction wetlands significantly. The four remaining justices agreed with the ruling but disagreed with the majority’s strict standard that an adjacent wetland must adjoin a traditionally navigable water to be regulated.
As we previously reported, earlier this year, the EPA announced a final rule defining “waters of the United States” (WOTUS) that expanded the EPA’s authority under the CWA. That rule is now partially unworkable due to the court’s decision in Sackett. However, in the wake of the Sackett decision, the EPA has already announced that it is preparing a second regulation, which it will propose this fall. It is also likely that at least some states, if they have not already, will fill the regulatory void being left by the court’s decision.
Barclay Damon will continue to monitor the implications of the Supreme Court’s decision and the EPA’s pending regulations.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barcalydamon.com; Tom Paul, counsel, at tpaul@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.