On May 25, 2023, the United States Supreme Court released its much-awaited decision in Sackett v. United States. The case addresses how to determine whether a wetland is “waters of the United States” (WOTUS) under Section 404 of the Clean Water Act (CWA). After a somewhat bizarre oral argument in October, no one knew what to expect from the Court.
All nine of the Justices rejected the open-ended “substantial nexus” test to determine whether wetlands and other waters are WOTUS. All nine Justices also appeared to agree that the term “waters” in “waters of the United States” refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
However, the Justices were split on the question of when wetlands should be considered as WOTUS. The dispute centered, in large part, on the meaning of “adjacent”. The five Justice majority found that adjacent wetlands that are “indistinguishable” from waters of the United States due to a continuous surface connection constitute WOTUS. A “continuous surface connection” under the majority opinion means that the wetland abuts the “waters.”
The four Justices in the minority would include wetlands “adjacent” to WOTUS as WOTUS. These four Justices distinguish “adjacent” from “abutting” or “adjoining” and adopted the EPA and Corps definition of “adjacent”- (1) those wetlands contiguous to or bordering a covered water, and (2) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. This long, expensive, contentious litigation appears to have determined one issue- “adjacent” means “abutting” or “adjoining.”
The Clean Water Act covers discharges into “navigable waters”. Congress defined “navigable waters” as “waters of the United States” (WOTUS), leaving the rest to the Environmental Protection Agency (EPA) and Corps of Engineers (Corps), who jointly administer the permitting program. Waters that are in fact navigable are clearly WOTUS. The regulations (developed by the EPA and Corps) also define tributaries of navigable waters and “adjacent wetlands” as WOTUS. If the “water” or wetland is determined to be WOTUS, no pollutants or dredge and fill material can be discharged without a permit.
The Sackett case focuses on when wetlands are WOTUS and really starts in 2006, when the United States Supreme Court decided Rapanos v. United States. Prior to the Rapanos case, the Court had decided that decision of the Corps to regulate “adjacent” wetlands as WOTUS was reasonable (1985). The wetland in that case abutted the navigable water and the Court used “abut”, “adjoin”, and “adjacent” interchangeably. However, the Corps and EPA defined, and still define, “adjacent” in this context as “bordering, contiguous, or neighboring”.
The Court had also decided that “isolated” waters or wetlands are not WOTUS (2001). The cases since 2001 tend /to look at the question of whether a wetland that is “adjacent” to a tributary of a navigable water is WOTUS. Often these cases involve very attenuated connections where the wetland is adjacent to a ditch or non-navigable stream that flows to different ditches and streams, sometimes for miles, before reaching a navigable water.
The Rapanos case involved one of these cases and ended with a 4-4-1 decision. Justice Scalia wrote for the plurality that only wetlands “with 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 ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Clean Water Act [CWA]”. This test limits adjacent wetlands to wetlands that abut navigable waters or their tributaries. Tributaries do not include, according to this test, waters with intermittent, physically remote hydrologic connections to WOTUS.
Justice Kennedy wrote the solo opinion in Rapanos. Since both Justice Kennedy and the four justices signing off on the plurality opinion would vacate the lower court opinion and send the case back for further consideration, that result garnered a majority of votes. But Justice Kennedy had a different test. Justice Kennedy said that if the wetland is “adjacent” to waters that are not navigable-in-fact, the wetlands must have a “significant nexus” to the navigable water. A significant nexus exists where the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters.
The Sacketts purchased property that was later determined to contain a wetland. Across the road from the Sackett property is another large wetland that is connected to a navigable lake. The Sackett property is about 300 feet from the lake. The Ninth Circuit Court of Appeals found that the Kennedy “significant nexus” test should apply and that the wetland on the Sackett property has a significant nexus to the lake. The Sacketts appealed and the United States Supreme Court accepted the appeal and stated that the question to be answered was “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act…” This case is important to the groundwater industry because at least one court has found that groundwater can have a significant nexus to navigable waters and thus be WOTUS, with permit requirements attaching.
A large number of groups filed amicus briefs in support of each side. Oral arguments were held on October 3, 2022.
United States Supreme Court Decision in Sackett
The United States Supreme Court issued a decision in the case on May 25, 2023. The case resulted in four different opinions. The majority opinion was written by Justice Alito, with Chief Justice Roberts, and Justices Thomas, Gorsuch, and Barrett joining (5 justices). Justice Thomas wrote a concurring opinion, in which Justice Gorsuch joined. Justice Kagan also filed a concurring opinion, joined by Justices Sotomayor and Jackson. Finally, Justice Kavanaugh filed a concurring opinion, joined by Justices Sotomayor, Kagan, and Jackson.
The Kagan and Kavanaugh opinions resemble dissenting opinions given the nature of the holding. All nine Justices agreed that the “substantial nexus” test is not the appropriate test, so all nine reversed the Ninth Circuit decision and remanded the case for further consideration. However, the Justices split on the appropriate test to determine when wetlands constitute waters of the United States.
The five Justice majority affirmed the test from Justice Scalia’s plurality opinion in Rapanos (2006). Namely, that the term “waters” in “waters of the United States” refers only to (1) “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’”, and to (2) adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. A “continuous surface connection” under the majority opinion means that the wetland abuts the “waters.”
The four other Justices (Justices Sotomayor, Kagan, Kavanaugh, and Jackson) voiced no objection to the definition of “waters” but argued for a different test for the inclusion of wetlands as WOTUS. These four Justices would include wetlands “adjacent” to WOTUS. Under this test, “adjacent” differs from “abutting” or “adjoining”, and the EPA and Corps definition of “adjacent” would govern. Under that definition, adjacent wetlands include (1) those wetlands contiguous or bordering a covered water, and (2) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. Justice Kavanaugh’s opinion asserted that “adjacent” is “unambiguously” broader than “adjoining”, finding that there can be “no debate” on that issue.
Justice Thomas’ concurring opinion would significantly narrow the scope of “waters.” His analysis ties the discussion back to the commerce clause and limitations on federal regulation of commerce. The influence of this opinion remains to be seen.
Takeaways from the Decision