SCOTUS Defines New Test for Protected Waterways and Wetlands

June 15, 2023

On May 25, the Supreme Court of the United States (SCOTUS) made its final decision on a long-running case that will redefine the power and authority that the United States Environmental Protection agency (EPA) will have to regulate and protect the navigable waters of the United States (WOTUS).

Sackett vs. EPA: A Decade-Long Legal Battle

As KJK has written on previously, the case captioned Sackett et ux. vs. Environmental Protection Agency et al. originated over a decade ago in rural Idaho, when the EPA prevented the Sacketts from completing construction of their new home near Priest Lake. The EPA claimed that the backfilling required to complete construction of the foundation of the Sackett’s home violated the Clean Water Act (CWA), ordered the Sacketts to restore the property, and threatened heavy penalties for non-compliance.

The Sacketts objected to the conclusion that any portion of their property was WOTUS, and the ensuing litigation, and resulting decision, marks one of the biggest changes to the CWA to date.

SCOTUS Rules in Favor of Sacketts

In a rare 9-0 decision, SCOTUS sided with the Sacketts. The decision of the Court, authored by Justice Alito, begin by praising the undeniable success of the CWA. The CWA and the actions of the EPA have brought enormous positive change to our nation’s waters and have helped to revive familiar places such as the Cuyahoga River from its infamous status of “The Burning River” to a safer and healthier environment for residents and wildlife alike. While the benefits of the CWA are not in question, says Alito, the definition of how far it can reach, and how far the EPA and other federal agencies can push it, is a “nagging question”.

This nagging question, as Alito terms it, involves what constitutes the true WOTUS that the CWA was intended to protect. Clearly it covers traditionally navigable waterways such as Oceans, lakes, rivers, and streams — but what about “any backyard that is soggy enough for some minimum period of time”, or “ditches, swimming pools, and puddles”?

The CWA, problematically, does not offer guidance. Instead, for decades, the definition of WOTUS has been left to the EPA, other governmental agencies, and the courts to try to determine. Previously, the definition of WOTUS was so broad that many feel it did indeed verge on the level of absurdity Alito questions. Under the previous controlling decision, Rapanos v. United States, Justice Kennedy’s sole concurrence in a 4-1-4 decision took a sweeping view of the EPA’s authority to regulate WOTUS, requiring only a “significant nexus” between a body of water and a traditionally navigable waterway of WOTUS.

New Standard in Interpreting the Scope of the CWA

In this final ruling on Sackett, the Justices delivered a complete rejection of the Rapanos test. Instead, they elected to adopt Justice Scalia’s plurality opinion from Rapanos and the test contained therein. The new, so-called “continuous surface connection test” sets forth the new standard in interpreting the scope of the CWA.

The new test includes two steps in determining whether a body of water is part of WOTUS and therefore regulated by the CWA. First, it must be determined that the body of water is connected to a traditionally recognized WOTUS (e.g., lakes, rivers, streams, etc.). Second, the body of water must have “continuous surface connection with that water, making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.”

Concerns and Implications

Some have voiced their concern that this restriction on the scope of CWA threatens to result in more pollution and an erosion of the progress made by the EPA under the CWA over the decades. In an amicus brief, water regulators expressed their concern that the new Sackett test could potentially exclude over half of the nation’s waters from the protections of the CWA. Conversely, the significantly narrower Sackett test has been hailed as a commonsense restriction on the scope of the CWA by property owners and builders alike, who had previously been greatly restricted in disturbing land nearby bodies of water not traditionally recognized as a navigable waterway (e.g., ditches, marshes, ephemeral streams, and ponds, etc.).

As this new standard is implemented throughout the nation, KJK’s Real Estate and Environmental Law Attorneys can help navigate current and future changes. Contact Matt Viola (MTV@kjk.com; 216.736.7253), or Jim Scherer at (JJS@kjk.com; 216.736.7296) for more information.