June 06, 2023


Posted on June 6, 2023 by Karen Aldridge Crawford

This long-awaited decision by SCOTUS in favor of the Sacketts finally put to rest the debate over the “significant nexus” test which was derived from Justice Kennedy’s solo opinion in Rapanos v. United States, 547 U.S. 715 (2006) case many years ago.  Kennedy’s opinion served as a basis for revisions to the definition of “waters of the United States” (WOTUS) proposed by both Obama and Biden, both the subject of much litigation.  While the justices were not all in agreement with the new test set forth in the majority decision in Sackett,  none supported the “significant nexus” test suggested by Kennedy in Rapanos as being authorized by the Clean Water Act (CWA), and all concurred in the judgment.

As you all no doubt know, the Sacketts purchased property near a lake in Idaho and began backfilling the lot to prepare for building a home.  EPA informed them their property contained wetlands and the backfilling violated the CWA by discharging into “the waters of the United States” (WOTUS) because they were near a ditch that fed into a creek which fed into the lake (a navigable intrastate lake).  The District Court entered summary judgment for EPA. Then the 9th Circuit affirmed the on the basis that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters.

Upon appeal, SCOTUS held:

The CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. Rapanos v. United States, 547 U. S. 715, 755, 742, 739 (plurality opinion). To assert jurisdiction over an adjacent wetland under the CWA, a party 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.” Ibid. Pp. 6–28.

The majority concluded that Congress’ choice to define WOTUS as “navigable waters” limits the use of “waters” in the CWA to encompass “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ” In support of this conclusion, the Court cited the Rapanos plurality decision and drew on similar understandings of the Court in earlier decisions, like Solid Waste Agency of Northern Cook Cty v. Army Corps of Engineers, 531 U.S. 159 (2001). (“SWANCC”).   SCOTUS found that the  assertions of the EPA and the Army Corps on the mere presence of water as indicia of wetlands “prove too much,” and instead invoked earlier decisions which excluded isolated ponds or focused on adjacency to covered waters.  The justices also questioned how states would remain “primary” if the EPA had such broad jurisdiction as claimed by the federal agencies. This Court limited the applicability of the CWA to those wetlands which are adjacent and qualify as WOTUS in their own right, that is, those   indistinguishably part of a body of water that itself constitutes “waters” under the CWA, and having a continuous surface connection to that body, such that there is no clear demarcation between waters and wetlands.  SCOTUS went on to state that the “significant nexus” test in EPA’s most recent rule lacked merit, sounding a death knell for that rule. Again, all justices concurred in the judgement.

Thomas penned and Gorsuch joined in a concurring opinion which would further tie jurisdiction under the CWA to the guidance in SWANCC that the CWA extends only to the limits of Congress’ traditional jurisdiction over navigable waters determined by traditional authority of the federal government over the interstate channels of commerce.

Kagan wrote a concurring opinion joined by Sotomayor and Jackson  which departed only in the definition of “adjacent” by stating that definition should include not only adjoining, touching or contiguous (or more specifically has a continuous surface connection), but also “nearby”  when only separated by a dike, berm, dune, or similar barrier (whether natural or artificial). 

These same three justices also joined Kavanaugh in his narrower, concurring opinion in which he agreed with the reversal of the 9th Circuit, not adopting the “significant nexus” test and concluding that the wetlands on the Sacketts’ property were not covered by the CWA but disagreed with the new test of “continuous surface connection” to WOTUS because it departs from the statutory text.  Kavanaugh stated “adjacent” and “adjoining” have different meanings, and that “adjacent” is broader and could include those wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.

Most lawyers I have spoken to about this decision believe it provides much more certainty and less risk for industry, developers, the agricultural community and private property owners. Clearly there may be different treatment under state wetlands laws if state law definitions differ from those set forth in the CWA.  There may be additional litigation in situations such as those identified in Kavanaugh’s concurring opinion where dikes and levees are built to control flood waters, or a separation is temporary.  Further, the Thomas concurring opinion signals an appetite to narrow jurisdictional reach of other federal statutes where jurisdiction is based on navigable waters or interstate commerce. Importantly, the U.S. Chamber praised the decision, commenting that it “… provided long overdue relief for companies and landowners across our nation.”