U.S. Supreme Court limits regulation of wetlands

A recent U.S. Supreme Court decision in Sackett v. EPA found that the Clean Water Act’s reach only extends to those wetlands with a continuous surface connection with a larger body of water, such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

The case turns on the definition of “waters of the U.S” under the Clean Water Act. At the center of the case is property owned by Michael and Chantell Sackett near Priest Lake in Idaho. The Environmental Protection Agency, charged with administering permits issued under the Clean Water Act, argued that the property that the Sacketts wanted to develop was adjacent to the lake 300 feet away, making it subject to federal jurisdiction.

The Supreme Court disagreed, finding the wetlands’ connection to the nearby lake too tenuous to qualify as “waters of the U.S.” and therefore fall under the jurisdiction of the CWA.

Last week’s ruling was unanimous, but the justices provided different reasons for their rulings. The conservative majority ruled that the CWA did not apply to the property, since a roadway runs between the wetlands on the property and the nearby lake. The liberal justices also found that the CWA should not apply to the Sackett’s property, but noted that they felt that the majority opinion strayed too far from the text of the CWA itself. A third option, penned by Justice Kavanaugh and joined by the three liberal justices, warned that limiting the reach of the CWA to adjoining wetlands would leave many adjacent (but not adjoining) wetlands unprotected.

The interpretation of “waters of the U.S." dates back to a 1986 rule. In 2006, in Rapanos v. U.S., the Supreme Court, in a 4-1-4 ruling developed two separate tests for whether a body of water was subject to the CWA. In one, a surface water connection was required. The other, broader approach, which was more widely adopted by federal courts, required a “significant nexus” between the area in question and navigable waters.

The Obama administration in 2015 finalized a rule that attempted to more clearly defined which waters received CWA protection after the Rapanos case, and others, created uncertainty. The 2015 rule extended CWA protections for wetland habitats and other interconnected aquatic systems.

The Trump administration then developed a new rule, limiting the reach of the CWS. The 2020 rule only protected wetlands under the CWA if they had “relatively permanent” surface water connections with other nearby waterways - an interpretation that meant that about 51 percent of the nation’s wetlands lost protections under the regulation.

Recently, the Biden Administration has finalized yet another interpretation of “water of the U.S.” The 2023 rule is broader than the 2020 rule, but not as inclusive as the 2015 rule. However, it now will need to be revised to be in accordance with the recent Supreme Court decision.

The decision in Sackett throws into question the legal status and protection of as many as 90 million acres of wetlands across the U.S. Such wetlands, of course, are critical to birds during migration, as breeding sites, and as wintering sites.

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