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 

Legislative Approaches to Defining “Waters of the United States”
"In the 111th Congress, legislation has been introduced that seeks to clarify the scope of
the Clean Water Act(CWA) in the wake of Supreme Court decisions in 2001 and 2006 that
interpreted the law’s jurisdiction more narrowly than prior case law. The Court’s narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v.
Army Corps of Engineers(SWANCC) and Rapanos v. United States.

Bills to nullify the Court’s rulings have been introduced repeatedly since the 107th Congress,
but none had advanced until the 111th Congress. In June 2009, a Senate committee approved
S. 787, the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088
(America’s Commitment to Clean Water Act), was introduced in April 2010.

Under current law, the key CWA phrase which sets the act’s reach is the phrase “navigable
waters,” defined to mean “the waters of the United States, including the territorial seas.”
Proponents of the current legislation contend that the Court misread Congress’ intent when
it enacted the CWA, and consequently the Court’s ruling unduly restricted the scope of the
act’s water quality protections. Both S. 787 and H.R. 5088 would replace the phrase “navigable
waters” in the CWA with “waters of the United States” and would install a definition of
“waters of the United States,” not found in the law now. The bills differ in how they would
define the phrase. The Senate committee bill includes a definition drawn from one paragraph
of existing federal regulatory text, while H.R. 5088 includes a longer definition based on
the same regulatory language, but with some modifications. Both bills also include provisions affirming the constitutional basis for the act’s jurisdiction. These provisions address the concern that the Court’s rulings, while decided on statutory grounds, raised related questions about the outer limits of Congress’s power to regulate waters with little or no connection to traditional navigable waters under the Commerce Clause of the Constitution..."