Revisiting the Waters of the United States - Sackett v. EPA
Co-Authored By: Steve Case and Neil McCarthy (Graduate Clerk)
On May 25th the Supreme Court issued an opinion in the case of Sackett v. EPA, seeking to clarify the scope of federal regulatory authority under the Clean Water Act (“CWA”) by definitively answering which waters are included within the definition of the “waters of the United States.”
Background
The current controversy has its roots in the 2006 decision of Rapanos v. United States where the Court, in a plurality opinion, relied on two separate tests to reach its conclusion. Specifically, the Court fashioned the “significant nexus” and “relatively permanent” tests.
The “significant nexus” test determines what is included within the “waters of the United States” through a fact intensive analysis which determined if a body of water or wetland, which is adjacent to a “water of the United States,” significantly affects the water without necessarily being connected to the “water of the United States” on the surface. This test allowed regulators to account for the complete hydrological system, including subsurface water flow.
The “relatively permanent” test, which determines what is included within the “waters of the United States” by incorporating any body of water “that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Sackett, quoting Rapanos. This test allows regulators, and, importantly, lay landowners to readily determine if a wetland in question could be included within the “waters of the United States.”
Federal regulators, preferring the flexible and broad standard supported by the “significant nexus” test and following a series of dueling rulemaking actions, had officially incorporated the “significant nexus” test into the most recently implemented rule regarding the Revised Definition of “Waters of the United States,” which came into effect on March 20, 2023 (“WOTUS Revised Rule”), though it has been subsequently stayed in 27 states, including Nebraska.[1]
Where We are Now
The May 25th decision shook the firmament by definitively declaring that the “significant nexus” test is dead and instead endorsing the “relatively permanent” test as the final word in the scope of the “waters of the United States.” To help clarify what is included, the Court has laid out two elements that a wetland must satisfy to come under federal jurisdiction:
1. The body of water adjacent to the wetland in question must be a “water of the United States;” and
2. The wetland must have a continuous surface connection with the adjacent “water of the United States,” making it difficult to determine where one ends and the other begins.
In a separate opinion Justice Kavanaugh concurred in the judgment but disagreed on the test used by the majority. Kavanaugh stated the majority’s decision “will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
This ruling calls into question the legality of the WOTUS Revised Rule and will require federal regulators to clarify how they will be implementing the relevant statutes in light of this new test. The Army Corps of Engineers and the EPA have stated they will interpret “waters of the United States” in a manner consistent with this decision.
Where We Go from Here
Like many Supreme Court decisions that are meant to be the final word on a matter, this decision gives rise to more questions than answers:
1. When will the WOTUS Revised Rule be rewritten to faithfully implement this decision?
2. What will be considered sufficient to satisfy a “continuous” surface connection?
3. What will determine the legality of a barrier that may or may not remove a wetland from federal protection?
4. What steps will individual states and entities take to protect waters that may now fall outside of federal protection?
These questions and more must be answered going forward in order for landowners, developers, and state and federal regulators to faithfully implement and abide by this new test.
What is certain is that the reach of federal regulators has been severely curtailed following this case and wetlands that have previously been regulated at the federal level will now fall under the purview of state governments.
Attorneys at McGrath North are prepared to assist you in navigating the constantly evolving regulatory landscape.
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