Skip to Content


on Wednesday, 31 May 2023 in Environmental Pulse: Vanessa A. Silke, Editor

In Sackett v. Environmental Protection Agency, the Court held that wetlands may only qualify as “waters of the United States” if they have a continuous surface connection to a traditionally navigable water body.

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. § 1362(7). Federal regulators 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 water-quality regulation, WOTUS has been the subject of numerous changes and lawsuits in recent years. Under the split decision in Rapanos v. United States, 547 U.S. 715 (2006), lower courts have generally permitted federal regulators to regulate any wetland that has a “significant nexus” to a traditionally navigable water. We summarized those cases, as well as the Biden Administration’s recent attempts to redefine WOTUS via regulation, in articles here and here.

Petitioners in this case own a half-acre lot. Although marshy, the lot is about 300 feet from the nearest lake or river. To build a house on the lot, 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 petitioners thus need a dredge-and-fill permit.

The trial court upheld the EPA’s determination. Although the petitioners’ lot indisputably lacks a continuous surface connection to any WOTUS, the trial court found that it has a significant nexus. In this article, we predicted that the U.S. Supreme Court would reverse.

Like we predicted, the court reversed and significantly limited what constitutes WOTUS. The opinion, authored by Justice Samuel Alito, is available here.

All nine justices agreed that petitioners’ property did not contain WOTUS, and a five-justice majority defined WOTUS narrowly to include “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that described in ordinary parlance as streams, oceans, rivers, and lakes.” (Internal citations omitted). Thus, to assert jurisdiction, the federal regulator must (1) identify a relatively permanent body of water connected to traditional interstate navigable waters and (2) show that the wetland at issue has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.

Put differently, for wetlands to qualify as WOTUS, they must be indistinguishably part of a body of water that itself constitutes WOTUS. The opinion is a victory for the rights of landowners and real-estate developers.

Although all nine justices agreed on the result, three concurring opinions contested the majority’s reasoning. Justice Clarence Thomas wrote a concurring opinion (joined by Justice Neil Gorsuch) that advised the court in future cases to consider stricter limits on federal regulation under the Commerce Clause, U.S. Const. art. 1, § 8. Justice Brett Kavanaugh (joined by Justices Sonia Sotomayor, Elena Kagan, and Kenanji Brown Jackson) proposed including within WOTUS any wetlands separated from navigable waters by a manmade or natural barrier, such as a dike or beach dune. Justice Kagan (joined by Justices Sotomayor and Jackson) criticized the majority for shrinking federal regulators’ environmental authority for a second time in two years. (We analyzed W. Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022) in this article.)

Attorneys at Baird Holm LLP have broad experience in environmental and water law. Please contact us if you have questions about this case or a related matter.

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