May 31, 2023Client Alert

SCOTUS Significantly Narrows Clean Water Act Wetland Jurisdiction

On May 25, 2023, the Supreme Court issued a decision limiting federal jurisdiction over wetlands in Sackett v. EPA. In a curtailment of previous regulations, the Court held that the Clean Water Act only regulates those wetlands that maintain a “continuous surface connection to bodies that are ‘waters of the United States’…” Sackett at 27, citing Rapanos v. United States, 547 U. S., at 742, 755 (plurality opinion). This new test is significantly more restrictive than the Court’s prior decisions on federal wetland jurisdiction under the Clean Water Act.  Although the practical impact of the decision remains unclear, the Court’s new “continuous surface connection” test is anticipated to exclude a very large number of acres of wetlands from federal jurisdiction, and with it, the need for developers to apply for federal Clean Water Act permits to build on or fill such wetlands. Federal Clean Water Act permits are often required in energy projects and housing developments, and this decision is seen as a major win for those industries.  However, this decision will not have a significant impact on states, like Wisconsin, that have adopted their own state wetland permitting programs.


Whether a specific wetland falls within federal Clean Water Act jurisdiction has been a question asked and answered by the Supreme Court for decades with varying outcomes. One of the earliest jurisdictional tests was known as the “Migratory Bird Rule” from United States v. Riverside Bayview Homes Inc., 1985. That test drew the line of federal wetland jurisdiction based upon whether birds and endangered species inhabited or utilized a body of water throughout the year. Subsequently, the Supreme Court replaced this broad and uncertain rule in Rapanos v. United States, 2006, which stood for years in some form – until now.

The result in Rapanos was a divided Supreme Court with no majority opinion. This led to national incongruence and circuit court splits. The Rapanos plurality, authored by late Justice Antonin Scalia, laid the foundation for the Sackett decision, arguing that there must be a continuous surface water connection to a waterway for a parcel to be subjected to federal Clean Water Act authority. The Kennedy concurrence in Rapanos was known for the requirement that the wetland be defined as anything that has an ecological connection to a navigable waterway – the “significant nexus” rule. The open-endedness of the significant nexus test created uncertainty as to what the EPA would say is ecologically influencing-enough to meet the vague standard. The Sackett decision has now clarified the test to determine whether a wetland falls within federal Clean Water Act jurisdiction.


The Sacketts are a couple who have spent almost two decades in this legal battle which escalated from plans to build their new home in Idaho. Sackett v. EPA, 4-6. The EPA began an enforcement action against the Sacketts after learning that the Sacketts backfilled what was considered by the EPA to be federally managed wetlands on their newly purchased lot, which was about 300 feet from a nearby lake and 30 feet to a non-navigable stream. See Id. The Sacketts challenged the EPA’s jurisdiction over the wetlands and the case made its way through the federal courts for over a decade. The case most recently was appealed to the Supreme Court from the Ninth Circuit Court of Appeals, where the court attempted to determine whether there was a significant nexus between the Sackett’s wetland property and the nearby navigable lake, and whether the wetlands at issue “significantly affect” the quality of that lake.  The Sacketts appealed the Ninth Circuit decision, arguing for a different jurisdictional test.

At the Supreme Court, the Sacketts argued to abandon the significant nexus test, and that federal jurisdiction should only attach when a wetland is “inseparably bound up” with a navigable water.  The EPA argued in favor of the much broader significant nexus test applied by the Ninth Circuit Court of Appeals. Sackett, 12-13. The Supreme Court, in its majority decision authored by Justice Samuel Alito, rejected the significant nexus test and adopted a new approach based on the standard offered by Justice Scalia in Rapanos.  Justice Alito wrote that Clean Water Act  jurisdiction should apply to wetlands that are “as a practical matter indistinguishable from waters of the United States” due to a “continuous surface connection with a larger body of water” that makes it difficult to determine where the navigable water  and wetland begins. Sackett, 22.

A concurring opinion by Justices Thomas and Gorsuch highlighted the historical interpretation of waters of the United States, as those waters which are navigable as it relates to commerce; and concluded that federal jurisdiction over wetlands should be within the bounds of federal authority over navigable waters, as derived from the commerce clause of the U.S. Constitution. Id., Thomas, concurring, 22.

A concurring judgment by Justices Kagan, Sotomayor and Jackson responded with concern over the Court’s decision to limit the meaning of “adjacency” and regulatory authority in the Clean Water Act to exclude minor separations from continuously flowing waterbodies. Id., Kagan, concurring in the judgment, 1; 6.

Finally, in Justice Kavanaugh’s concurrence in the judgment, (joined by Justices Kagan, Sotomayor and Jackson), he disagreed with the majority’s “continuous surface connection” test, arguing it goes against decades of precedent and EPA practice, and could threaten long held federal wetlands, creating concerns for water quality and flood control. Kavanaugh argues the majority wrongly narrows the Clean Water Acts application to “adjacent” wetlands to mean “adjoining,” which unreasonably limits what wetlands should be regulated. See Id. At 3-5.


While the Biden Administration had taken steps in the last year to promulgate rules that protect wetlands, the Administration will now need to rework those goals to align with the Supreme Court decision in Sackett, which significantly shrinks the federal government’s jurisdiction. Many development and construction projects cannot proceed without federal Clean Water Act permits; thus, the Sackett simplification of wetland determination removes significant red tape for many industries.  However, the Clean Water Act delegates authority to states to implement their own protections for waters and wetlands under the Clean Water Act, and many have adopted their own wetland protections that will remain despite the Sackett decision. Nonetheless, one aspect of federal regulation has been minimized significantly with this decision.

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