On May 25, 2023, the Supreme Court of the United States (“SCOTUS”) issued a decision, Sackett v. EPA, which dramatically curtailed the Environmental Protection Agency’s (“EPA”) authority to regulate certain wetlands under the Clean Waters Act (“CWA” or the “Act”).
The CWA, enacted in 1972, has been the primary federal law regulating water pollution in the United States for over half a century. The Act is generally enforced by the EPA and the Army Corps of Engineers and has indisputably been effective in regulating water pollution in the United States.
The Act prohibits the discharge of pollutants into “navigable waters,” which it defines as “the waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12)(A) (2018 ed.). However, since the Act’s inception, the meaning of this definition has been ambiguous and constantly evolving. Moreover, the Act broadly defines “pollutants” to include not only traditional notions of pollutants, but also more mundane materials like rock, sand, and dirt. 33 U.S.C. § 1362(6). The penalties for violating the CWA, negligently or knowingly, are often very severe, and include criminal charges or civil fines of over $60,000 per day for each violation.
Prior to the Court’s decision in Sackett, the outer boundaries of the Act’s geographical reach were subject to the EPA’s guidance, which was convoluted and constantly evolving. This combined with the severe consequences for violating the act, posed a massive risk to land users who were often forced to obtain an expert’s opinion just to determine whether the Act applied to them or their property. By the EPA’s own admission, nearly all waters and wetlands were potentially susceptible to regulation under the pre-Sackett “significant-nexus” test used to establish jurisdiction over “adjacent” wetlands.
Rejecting the EPA’s more expansive proposal of what constitutes an adjacent wetland subject to the CWA’s jurisdiction, the Supreme Court held that “the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States.” Sackett, 598 U.S. at 22 (2023) (quotations omitted). To further clarify the jurisdictional limits of the CWA over adjacent wetlands, the Supreme Court established the following two part test: (i) the adjacent body of water constitutes water of the United States (i.e. a relatively permanent body of water connected to traditional interstate navigable waters); and (ii) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
While the Sackett decision significantly narrows the jurisdictional reach of the CWA, arguably going too far, it resolves a long-standing issue of ambiguity and vagueness by providing clarity to the CWA’s jurisdictional scope over wetlands.