06/16/2023 - Clean Water Act - Supreme Court Decisions

Sackett v. EPA: Departure from Textualism Significantly Limiting Clean Water Protection

by Sara Dewey

On May 25, 2023, the Supreme Court issued its long-awaited opinion in Sackett v. EPA, a case challenging the Clean Water Act’s (CWA) applicability to certain wetlands. In its decision, the Court significantly narrowed protections for wetlands under federal law, upending 50 years of water protection and leaving vulnerable vast swathes of US wetlands, which play a critical role in water quality, flood control, carbon storage, and support biodiversity.

At issue in the Sackett case is the definition of “waters of the United States” as it applies to the wetlands on the Sackett property in Idaho, which is located near Priest Lake. As the Court noted, “[t]he phrase has sparked decades of agency action and litigation.” The Sackett decision draws heavily on Justice Scalia’s test in Rapanos and narrows the interpretation of adjacent wetlands to significantly limit the scope of the CWA, with major implications for wetland protection and water quality across the United States.

Justice Alito, writing for the majority, announced a test that draws on the Rapanos plurality: “we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’ […] This requires the party asserting jurisdiction over adjacent wetlands to 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.’” The concurring Justices criticized this test which, it argued, reflected the majority’s departure from the text and the reliance on interpretive canons to make policy decisions. The decision raises many questions about which wetlands and other waters will be deemed jurisdictional going forward, creating regulatory uncertainty for regulators and landowners.

In my analysis I briefly review the litigation and regulatory history of the CWA and then turn to the Sackett decision, reviewing the majority opinion, concurrences, and questions that the decision raises. Read or download here.