Skip to Content

Supreme Court Again Considers Scope of Clean Water Act

on Thursday, 6 October 2022 in Environmental Pulse: Vanessa A. Silke, Editor

At issue in Sackett v. Environmental Protection Agency is whether a wetland lacking continuous surface connection to navigable waters qualifies as “waters of the United States.”

On October 3, 2022, the U.S. Supreme Court heard oral arguments in its first case of the term, Sackett v. Environmental Protection Agency. A long-running dispute over what constitutes “waters of the United States,” the case may significantly limit the scope of federal jurisdiction under the Clean Water Act.

The Clean Water Act, 33 U.S.C. § 1251 et seq., is the primary federal statute regulating water quality in the United States. It uses the phrase “water of the United States” (“WOTUS”) as a limit on federal jurisdiction. A federal agency may only require a permit for the discharge of pollutants or dredge material into WOTUS. See §§ 1342 & 1344. Because of the term’s importance to federal jurisdiction, WOTUS has been the subject of numerous changes and lawsuits in recent years. We summarized those cases, as well as the Biden administration’s recent attempts to redefine WOTUS via regulation, in articles here and here.

The petitioners in this case own a half-acre lot. Although marshy, the lot is about 300 feet from the nearest lake or river. To ready the lot for construction, the petitioners filled the wetland with dredge material. The U.S. Environmental Protection Agency (“EPA”) issued a compliance order. It alleged that the lot contained WOTUS and that the petitioners thus needed a dredge-and-fill permit.

The petitioners challenged the compliance order. In a strictly procedural decision in 2012, the Supreme Court held that the order was sufficiently final to support an appeal. Sackett v. E.P.A., 566 U.S. 120 (2012). Now, the petitioners challenge the compliance order on its merits.

The case will turn on what constitutes WOTUS. In Rapanos v. United States, 547 U.S. 715 (2006), four justices narrowly defined WOTUS as “relatively permanent, standing, or flowing bodies of water” with a “continuous surface connection” to a traditionally navigable water, such as a lake or river. Id. at 716. That definition did not, however, command a five-justice majority. Lower courts have thus applied a looser definition that encompasses any wetland with a “significant nexus” to a traditionally navigable water. See id. at 780. Although the petitioners’ lot indisputably lacks a continuous surface connection to a traditionally navigable water, the trial court found that it has a significant nexus.

We predict that the Supreme Court will side with the petitioners. At oral arguments, several justices sounded troubled by the lack of clarity about what constitutes WOTUS. That lack of clear guidance costs the regulated community significant time and money during any project that entails work in or around wetlands. The justices pressed for a bright-line rule. Although only four justices voted for the “continuous surface connection” definition in 2006, we anticipate that a majority will support it this time.

Attorneys at Baird Holm LLP specialize in water law and environmental compliance. Please do not hesitate to contact us if you have questions about this case or any related matter.

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500