Clean Water Act practitioners have spent the past 50 years learning how to identify a wetland or water body that qualifies for federal jurisdiction—and the past 17 parsing the phrase "significant nexus." The upshot was that virtually all wetlands, streams, and ditches were subject to federal rules. All of that is out the window now.
In Sackett v. EPA, the Supreme Court dramatically redefined the term at the jurisdictional heart of the federal Clean Water Act: "waters of the United States." The narrowness of that new definition will change how the Act works.
The Sacketts owned property near—but not touching—a lake in Idaho. They wanted to build a house there. But when that project required them to fill the wetlands on their property, EPA told them that those wetlands were "waters of the United States." Because such wetlands are under federal jurisdiction, they can't be filled without a federal permit. The Sacketts sued.
When the Sacketts' case reached the Supreme Court (for the second time), the justices agreed that "at least some wetlands" were jurisdictional waters of the United States. Which ones? The majority explained: Only wetlands that "qualify as 'waters of the United States' in their own right" are under federal jurisdiction. In other words, the Clean Water Act applies to wetlands that are "indistinguishably part of a body of water that itself constitutes 'waters' under the [Act]." By contrast, "[w]etlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby."
After Sackett, a federal agency asserting jurisdiction over wetlands must show two things: (1) that an "adjacent" waterbody qualifies as "waters of the United States (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)"; and (2) "that the wetland has a continuous surface water connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins."
As Supreme Court tests go, this one is fairly clear. Unless a wetland has a "continuous surface water connection" to a "relatively permanent body of water" that is "connected to traditional interstate navigable waters," it is not subject to federal jurisdiction. Because the Sacketts' wetlands had no such connection, they won.
But while the Court's decision may be the end of the Sacketts' story, it is the start of a new era for the Clean Water Act. The Court's definition of "waters of the United States" could transform federal environmental law. Here are a few key issues to watch:
The new rule defining "waters of the United States." Less than six months ago, EPA and the Corps of Engineers published a new rule that defined "waters of the United States" far more broadly than the Court defined the phrase in Sackett. That rule—which was already being challenged in multiple courts—now appears obsolete. The agencies may go back to the drawing board, but a new rule is not likely any time soon.
Wetland delineation. Every test has some line drawing problems, and the test for wetland jurisdiction in Sackett is no exception. The hard questions will likely be what qualifies as a "continuous surface water connection" and, when such a connection exists, where the connected wetland stops being "indistinguishable" from the jurisdictional water. EPA could issue interim guidance on these questions. If it does, expect more litigation.
Jurisdiction over tributaries and ditches. Sackett nods at the fact that the family's property was thirty feet from a "tributary"—really, as Justice Thomas's concurrence put it, a "roadside ditch"—that eventually drained into a navigable lake. The Court did not decide whether that tributary was jurisdictional, but it understood "waters of the United States" to mean "relatively permanent" waters that are "connected to traditional interstate navigable waters." And it noted that "waters of the United States" "principally refers to bodies of navigable waters like rivers, lakes, and oceans." That reasoning may well exclude most or all man-made ditches and at least some tributaries from federal jurisdiction.
Point source discharges. The Clean Water Act prohibits "the discharge of any pollutant" without a permit. But the Act's definition of "discharge of a pollutant" applies only to point source discharges to "waters of the United States." So when Sackett defined "waters of the United States" to exclude certain wetlands and, potentially, some tributaries, it also may have limited the scope of federal authority over point source discharges. And while point source discharge permits are usually issued by states, litigation over federal jurisdiction is still likely.
County of Maui. Three years ago, the Supreme Court's decision in County of Maui v. Hawaii Wildlife Fund broadened the scope of federal jurisdiction over groundwater discharges. There, the Court held that if a point source discharge to groundwater was the "functional equivalent" of a discharge to waters of the United States, the federal Clean Water Act applied. But because Sackett narrows the meaning of "waters of the United States," it also potentially limits the scope of Maui. Fewer waters of the United States means fewer discharges qualify under the Maui "functional equivalent" test. Again, the lower courts will have to decide where to draw the lines.
State clean water rules. Sackett's biggest effect may be on the states. In states that already have robust wetland and water rules, curtailing federal jurisdiction may not make much practical difference; the states themselves will still require permits. But more permissive states will face new questions about how—and whether—they want to regulate wetlands and pollutant discharges. Answering those questions could burden state agencies and legislatures for years to come. In the meantime, parties will have to navigate state law to understand when they need permits.
Sackett effectively holds that EPA has been misinterpreting the Clean Water Act for the past 50 years. That holding applies directly to wetland jurisdiction, but its implications are far broader. Venable's environmental team has both the legal know-how and the practical experience to help regulated parties in this rapidly evolving area.