On May 25, 2023, the Supreme Court issued its long-awaited decision in Sackett v. Environmental Protection Agency, which significantly narrowed the Clean Water Act’s (“CWA”) test for determining whether wetlands are protected “waters of the United States” and the federal permitting requirements for development projects in covered wetlands areas.
The Court’s Ruling
The Supreme Court’s ruling has two basic parts:
- It adopts Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), which interpreted covered “waters” in the CWA to include “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” (Internal quotation marks and bracket omitted.)
- It also adopts the Scalia plurality’s interpretation of covered “wetlands adjacent” to traditional navigable waters under CWA § 1344(g)(1), which governs federal permitting for discharges of dredged or fill material, as wetlands that are “as a practical matter indistinguishable from waters of the United States.” According to the Sackett Court, this means (1) that “the adjacent body of water constitutes waters of the United States, (e.g., a relatively permanent body of water connected to traditional interstate navigable waters),” and (2) “that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” (Emphasis added; internal quotation marks, ellipses, and brackets omitted.)
This definition of adjacent wetlands supersedes the one that EPA and the U.S. Army Corps of Engineers have relied upon since Rapanos—that adjacent wetlands included those with a “significant nexus” to traditional navigable waters. The significant nexus test—derived from Justice Kennedy’s Rapanos concurrence—covered a much broader range of wetlands beyond just those with a “continuous surface connection” with “permanent bod[ies] of water connected to traditional interstate navigable waters.” It required EPA and the Army Corps to determine if “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditional navigable waters. This required a fact-intensive, technical assessment of wetlands to determine if they had a significant nexus.
Sackett strips away much of the nuance by asking only if there is a continuous surface connection between the wetland and certain waters. Yet the majority’s newly adopted test may not provide simple answers in all circumstances. The majority acknowledges “that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells,” without removing the connected wetlands from CWA jurisdiction. Questions will remain, for instance, regarding just how long a “dry spell” must last before wetlands are no longer considered “adjacent” under Sackett. Justice Kavanaugh’s concurring opinion flags other questions the Sackett majority’s test doesn’t necessarily answer:
For example, how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by the Clean Water Act? How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How ‘temporary’ do ‘interruptions in surface connection’ have to be for wetlands to still be covered?
Sackett also states that “barriers” constructed between waters and adjacent wetlands
“would ordinarily remove that wetland from federal jurisdiction.” So wetlands separated from covered waters by roads, berms, or other manmade, or even natural, barriers will no longer be protected, no matter close their ecological or hydraulic connection. Yet the majority clarifies that “landowner[s] cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA.” It explains that, “[w]henever the EPA can exercise its statutory authority to order a barrier’s removal because it violates the Act,” that “unlawful barrier poses no bar to its jurisdiction.”
Implications for Federal and State Permitting for Project Developers
Sackett will likely have immediate and potentially sweeping impacts for many projects being developed near wetlands across the country. But those impacts will vary depending on the location and type of project.
Some projects likely won’t see a meaningful difference. For example, hydroelectric generators with impacts on clearly navigable waters will continue to be regulated under the CWA. And large offshore wind projects will be built in the ocean—perhaps the most traditional of the navigable waters the CWA covers. Note, however, that offshore wind projects may see some differences in permitting interconnecting transmission facilities onshore, though many of the states where offshore wind projects are being developed and interconnected have their own state and local wetlands permitting regimes that will continue to apply regardless of Sackett.
Onshore development projects may see more of a difference, particularly if they resemble the project at issue in Sackett, which involved wetlands that were located by a tributary “on the other side of a 30-foot road,” which fed into “a non-navigable creek, which, in turn, [fed] into Priest Lake, an interstate body of water” EPA had designated as traditionally navigable. Yet, many states and localities have their own wetlands protection laws, ordinances, and permitting regimes that will still apply. Those processes may apply to a broader set of wetlands regardless of whether they have any connection to traditional navigable waters. Those processes might be less onerous than the CWA permitting requirements but will still require developers to be mindful of protecting wetlands when designing and building their projects.
A Few Key Takeaways
Sackett should not be read as a free pass for developers to ignore wetlands. It may exempt many projects from federal CWA wetlands permitting requirements in certain circumstances. Yet other state and local permitting requirements may still apply and require developers to employ significant mitigation measures to avoid and minimize impacts to wetlands.
As Justice Kavanaugh’s concurring opinion notes, Sackett itself also introduces new uncertainties into the regulation and management of wetlands with which developers will need to contend. And these uncertainties may be amplified as states react to the Court’s decision: while some states already have strong laws to protect wetlands, other states with less robust regimes will be faced with deciding whether and how to fill the gap left by Sackett.
The Sackett majority imagines a binary world, in which project developers battle overly zealous government regulators. Any developer knows that reality is far more nuanced. Developers must juggle many factors, not just the letter of the law governing permitting and the agencies administering permitting requirements. Important among those factors is community acceptance and the public interest and benefit served by the project being developed. Listening carefully to community concerns, including wetlands concerns, and establishing goodwill can go a long way in helping to ensure that projects get built. Doing the opposite can doom a project.