Last year, when the U.S. Supreme Court granted certiorari in Sackett v. EPA to decide “the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act,” the safe bet was on the Court’s conservative majority imparting some much needed clarity upon jurisdictional wetlands determinations by (i) simply having the numbers to issue a previously elusive controlling majority opinion and (ii) invalidating the amorphous “significant nexus” test that had prevailed since 2006 if only because the other competing test failed to garner majority support. The odds were good, but the stakes were high. This would be the Court’s fourth attempt to clarify the meaning of “waters of the United States” (WOTUS) and the limits of the federal government’s jurisdiction under the Clean Water Act (CWA).
The Court’s most recent prior attempt was anything but a model of clarity. The splintered 4-1-4 holding in Rapanos v. United States, 547 U.S. 715 (2006) produced a plurality opinion penned by Justice Scalia, which held that the reach of the CWA extends to only those “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.” Then-Justice Kennedy penned a partially concurring opinion that birthed the “significant nexus” test, finding that federal “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The four remaining justices dissented without crafting a test of their own, opting instead to defer to the government’s construction of WOTUS. But the dissenting Rapanos justices reasoned that, as between the other two opinions, Justice Kennedy’s “significant nexus” test was “far more faithful to [the Court’s] precedents and to principles of statutory interpretation.”
In the post-Rapanos years, no court adopted Scalia’s “continuous surface connection” test exclusively, some (like the Ninth Circuit below in Sackett) held that Kennedy’s “significant nexus” test is controlling, while others endorsed using either test. And then, too, came the rulemakings. The CWA implementing and enforcing agencies, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), promulgated a rule in 2015 defining WOTUS. That rule was repealed in 2019 and replaced in 2020. But the 2020 rule, too, was short-lived; it was vacated by a district court in 2021. The Biden administration promulgated a new WOTUS rule in 2023, after the Court granted certiorari in Sackett.
On May 25, 2023, the Court in Sackett finally brought much of this uncertainty to an end, as expected. Justice Alito delivered the Court’s opinion, in which Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett joined. Hence, a clear majority. And as to the “significant nexus” test fashioned by Justice Kennedy in Rapanos, the Sackett majority reasoned bluntly that, because “the CWA never mentions the ‘significant nexus’ test, . . . the EPA has no statutory basis to impose it.” But make no mistake, the quick death of the “significant nexus test” did not come at the hands of a partisan Court. Rather, it was a unanimous mercy killing. The “significant nexus test” suffered from incurable ambiguity, as evidenced by the fact that not a single justice advocated for its survival.
But Justice Scalia’s “continuous surface connection” test did survive, and it is now the law of the land – or, wetlands, as it were. Quoting extensively from Scalia’s plurality opinion in Rapanos, the opinion of the Court in Sackett holds that “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are ‘indistinguishable’ from those waters.” Further crediting the Rapanos plurality, the Sackett Court held that “the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
Accordingly, for a wetland to qualify as a WOTUS under the jurisdiction of the CWA, Sackett holds – consistent with the plurality in Rapanos – that the wetland must have a “continuous surface water connection” to a body of water that is a WOTUS in its own right – i.e., a relatively permanent, standing or continuously flowing body of water, such as a stream, river, lake, or ocean.
There were no dissenting opinions in Sackett, only concurring ones. Those justices who concurred in the judgment – Justices Kagan, Kavanaugh, Sotomayor, and Jackson – largely took issue with the majority’s treatment of “adjacent” wetlands. Every justice – from those in the majority to those concurring in the judgment – agreed that adjacent wetlands are jurisdictional, but the concurring justices would read “adjacent” to include both (i) wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a WOTUS only by “a man-made dike or barrier, natural river berm, beach dune, or the like.” These justices argue that the Court’s “continuous surface water connection” test impermissibly narrows the CWA’s coverage to include only the first category of adjacent wetlands – i.e., those that are contiguous to or bordering a covered water.
Justice Kavanaugh, concurring in the judgment, addressed the “significant repercussions” that he expects will follow from the Court’s “continuous surface water connection” test: “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test 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.” But the majority in Sackett – like the plurality in Rapanos – was unmoved by “the ecological consequences of a narrower definition of adjacent,” reasoning that “the CWA does not define the EPA’s jurisdiction based on ecological importance, and we cannot redraw the Act’s allocation of authority.” Furthermore, the majority maintains that any loss of CWA coverage occasioned by its new, narrower test can be filled by cooperative federalism: “States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.”
More Clarity, Less Permitting
Excepting perhaps a brief period from 1974 to 1975, when the Corps initially adopted a traditional judicial definition of “navigable waters” (“navigable in fact” or readily susceptible of being rendered so), the Sackett Court’s “continuous surface water connection” test (albeit borrowed wholesale from the Rapanos plurality opinion) is the narrowest controlling test than any court or agency has crafted to determine when wetlands are WOTUS, including the Trump administration’s Navigable Waters Protection Rule (NWPR), which the administration predicted would remove over 50% of the nation’s wetlands from coverage under the CWA. Whereas, per the Court in Sackett, the “significant nexus” test has been interpreted and applied such that “almost all waters and wetlands across the country theoretically could be subject to a case-specific jurisdictional determination,” the “continuous surface water connection” test will exclude from CWA coverage all wetlands that do not adjoin a WOTUS (i.e., are not contiguous to, or do not border, a covered water), if the test is interpreted and applied by EPA and the Corps in strict adherence with the Court’s opinion. (And if what’s past is prologue, that’s a big “if.”)
However, as the Sackett Court notes in its opinion, wetlands that fail the “continuous surface connection” test for federal CWA jurisdiction may still be regulated – and protected – by state programs. States may regulate wetlands within their borders more stringently than the federal government, and some states may respond to the Sackett decision by expanding the scope of their wetlands regulations, particularly to address adjacent, but not adjoining, wetlands that may fall out of federal CWA coverage. Project proponents should reasonably expect to see fewer jurisdictional determinations at the federal level, and fewer projects triggering federal CWA permitting overall. But going forward, projects may see an uptick in state-level wetlands permitting and enforcement activity.
The Sackett ruling also essentially guts the Biden administration’s recently promulgated WOTUS rule, which relies extensively (but not exclusively) on the “significant nexus” test that the Court has now rejected. The Biden administration will be under mounting pressure to withdraw its WOTUS rule, particularly given that implementation of the rule has already been blocked by the courts in nearly half of the country. The Biden administration will very likely have to go back to the drawing board and craft a new or revised rule that attempts to regulate as broadly as possible within the confines of the Sackett holding. One should expect EPA and the Corp to advance their respective interpretations of the “continuous surface water connection” test via forthcoming rulemakings and/or agency guidance. Thus, the next “safe bet” on WOTUS litigation is that there will be more litigation to come.