What Comes Next for Clean Water? Six Consequences of Sackett v. EPA
On May 25 the Supreme Court, ruling in Sackett v. EPA, sharply limited the scope of the federal Clean Water Act’s protection for the nation’s waters. The Court redefined the Act’s coverage of “waters of the United States” (WOTUS), which has been hotly contested since the Court’s previous 2006 decision in Rapanos v. United States. For nearly 50 years, the Environmental Law Institute has prepared authoritative research and analysis on federal, state, and tribal wetlands and water laws, and hosted workshops focused on legal and programmatic means for wetlands protection. In this post, we’ve compiled our observations of the Sackett decision and collected materials from ELI experts to help support states, tribes, and policymakers in this new legal context.
The Decision
Echoing Justice Scalia’s plurality opinion in Rapanos, Justice Samuel Alito’s opinion for a 5-member majority (himself, Chief Justice Roberts, Justice Thomas, Justice Gorsuch, and Justice Barrett) states that the Act extends protection only to those waters that are described “in ordinary parlance” as “streams, oceans, rivers, and lakes,” and to wetlands only if those wetlands have a “continuous surface connection” to such waters “making it difficult to determine where the water ends and the wetland begins.” This decision removes protection from many wetlands that have been covered under the Act for almost a half century by both Republican and Democratic administrations. The new majority gave no deference to these administrative determinations (nor previous Court interpretations).
Justice Brett Kavanaugh (writing for himself, Justice Kagan, Justice Sotomayor, and Justice Jackson) objected that the Court majority had substituted its judgment for that of Congress. The 1977 Amendments to the Act had explicitly required that its protections extend to “adjacent wetlands,” which have included numerous wetlands with no continuous surface connection to open waters – including wetlands “separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like,” as implemented thereafter by 8 different Presidential administrations. Kavanaugh writes:
The Court’s “continuous surface connection” test disregards the ordinary meaning of “adjacent.” The Court’s mistake is straightforward: The Court essentially reads “adjacent” to mean “adjoining.” As a result, the Court excludes wetlands that the text of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.
In rendering judgment unanimously for the Sacketts, none of the nine justices applied the Clean Water Act test devised by former Justice Kennedy in Rapanos. That test, which lower courts had treated as controlling and which provides the basis for the Biden Administration’s rule, provided for jurisdiction over waters and wetlands that have a “significant nexus” to traditionally navigable waters if they “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of” such waters.