Supreme Court Narrows Federal Jurisdiction Under Clean Water Act

"On May 25, 2023, the Supreme Court decided Sackett v. EPA, a case with significant implications for the scope of federal jurisdiction under the Clean Water Act (CWA). While the Court unanimously agreed that the lower court applied the wrong standard for determining when wetlands are considered “waters of the United States” (WOTUS) based on their adjacency to other jurisdictional waters, it split 5-4 on the appropriate test.

The majority formally adopted the approach taken by a four-Justice plurality in the 2006 case Rapanos v.United States. Under the majority’s test, “waters” are limited to relatively permanent bodies of water connected to traditional navigable waters and to wetlands that are “waters of the United States” in their own right by virtue of a continuous surface connection to other jurisdictional waters so that there is no clear demarcation between the bodies. Wetlands that are neighboring covered waters but are separated by natural or artificial barriers are excluded.

The CWA prohibits discharging certain pollutants into navigable waters, defined as “the waters of the United States, including the territorial seas” without a permit, but the statute does not define WOTUS. The definition of WOTUS is important because it determines which waters are subject to federal government regulations and protections, including CWA permitting programs. In January 2023, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA)—the two agencies tasked with implementing the CWA—issued a final rule redefining WOTUS. (See this report for an in-depth discussion of the rule and the previous regulations promulgated to define the term.) The Court’s ruling in Sackett construes the reach of the CWA more narrowly than the new or previous regulatory interpretations or the approach adopted by the courts of appeals since Rapanos. While the Sackett decision does not directly address the merits of the new rule, its rejection of several elements included in the rule casts doubt on the current regulatory framework. It also evinces the Court’s decreasing reliance on deferential modes of statutory construction as well as its increasing insistence on clear congressional authorization for agency action..."
Supreme Court and Clean Water Act