Sackett narrows the Clean Water Act to adjoining wetlands

The Supreme Court decided Sackett v. Environmental Protection Agency on 25 May 2023, holding that the Clean Water Act’s reach over wetlands stops at those physically joined to a covered waterway.¹ The Court took the case on what Justice Alito called “a nagging question about the outer reaches of the Clean Water Act,” and answered it by reading the statutory phrase “the waters of the United States” to mean only “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” together with wetlands “indistinguishable” from those waters “due to a continuous surface connection.”¹ The Ninth Circuit was reversed and remanded, 8 F.4th 1075.¹

1. The holding installs a two-part test and discards the one that preceded it. A party asserting jurisdiction over an adjacent wetland must establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”¹ Both parts come from the Rapanos plurality of 2006.² What goes is Justice Kennedy’s controlling concurrence in the same case, which had asked instead whether wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of adjacent navigable waters — the “significant nexus” standard the agencies had applied in the field for seventeen years.²¹

2. Nine justices agreed on the result and five on the reason. Justice Alito delivered the opinion of the Court, joined by the Chief Justice and Justices Thomas, Gorsuch and Barrett. Justice Thomas concurred, joined by Justice Gorsuch. Justices Kagan and Kavanaugh each filed opinions concurring in the judgment only, and between them Justices Sotomayor, Kagan and Jackson joined both.¹ Every member of the Court agreed the Sacketts’ property was not covered; four of them declined to adopt the test that got there. The continuous-surface-connection standard is therefore a five-vote holding, not a unanimous one, and the distinction matters to every subsequent dispute about what it requires.¹

3. The dispute between the five and the four is one word. Justice Kavanaugh wrote that the Court’s test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” because it “narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands.”¹ On his reading the two words are not synonyms: adjoining wetlands border a covered water, while adjacent wetlands also include those “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”¹ His illustration is physical — “a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley” — and he noted that such barriers “do not block all water flow.”¹ Congress used “adjacent” in 33 U.S.C. § 1344(g)(1).³

4. Justice Kagan put the objection structurally. Writing for herself and Justices Sotomayor and Jackson, she said the majority “alters — more precisely, narrows the scope of — the statute Congress drafted,” and that “Congress wrote the statute it meant to.”¹ She traced the 1972 Act to a period when the Cuyahoga River had “burst into flames, fueled by oil and other industrial wastes,” and described what the majority applied as a “pop-up clear-statement rule” explicable “only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.”¹ Her closing charge — that the vice was “the Court’s appointment of itself as the national decision-maker on environmental policy” — repeats, by her own account, what she had written in dissent in West Virginia v. EPA a year earlier, “with the replacement of only a single word.”¹⁴

The opinion settles the statutory ceiling without rewriting the regulation beneath it. The definition of “waters of the United States” sits in the Code of Federal Regulations, promulgated by the Environmental Protection Agency and the Department of the Army, and conforming that text to this holding is an act of rulemaking rather than an act of the Court.¹