By: Ben Schulz
On May 25, 2023, the Supreme Court delivered the opinion for Sackett v. Environmental Protection Agency tasked with defining “waters of the United States” under the Clean Water Act (CWA). The court limited “waters of the United States” to the traditional bodies of water under the CWA with a relatively permanent, standing, or continuous flow, [1] and held that the CWA extends to wetlands with a continuous surface connection to and indistinguishable from a “water of the United States.”[2]
Michael and Chantell Sackett purchased property near Priest Lake Idaho and backfilled a lot with dirt to prepare for building a home. The Corps classified the lot as a wetland subject to the CWA due to its location near a ditch, which fed into a creek, which fed into Priest Lake, which was an intrastate lake.[3] The Corps combined the Sacketts’ property with a nearby, similarly situated wetland complex and, and without any site-specific data, presumed that the combination significantly affected the chemical, physical, or biological integrity of the navigable water creating a significant nexus.[4] Under this framework, the Corps claimed the lot was subject to the provisions of the CWA as a “water of the United States.”
The Court explained how the EPA’s interpretation of “waters of the United States” exceeded the authority conferred by Congress under the CWA. The EPA’s interpretation of “waters of the United States” was inconsistent with the text of the CWA, and it wrongfully construed the statute in the absence of clear Congressional language.[5] Without an explicit delegation by Congress, the EPA’s interpretation exceeded the definition of “waters” based on the plain meaning, statutory history, and judicial precedent.[6] The overreaching in authority infringes upon the CWA’s express desire to preserve authority of water management to the states.[7]
While the majority focused on defining the outer limits of the term “waters,” Justice Thomas, concurring in the opinion, wrote to define the remaining undefined jurisdictional terms in “navigable waters of the United States.” Specifically, Justice Thomas defined “navigable” and “of the United States” as being bound to the traditional authority of Congress to regulate interstate commerce under the Commerce Clause.[8] Thomas’s interpretation requires that the water be capable of being used as a highway for interstate or foreign commerce and that regulation be limited to navigability.[9] The use of terms “navigable” and “of the United States” proscribe a limitation to regulate waters subject to traditional channels of commerce.[10] Thomas’s concurrence allocates even more authority for states to regulate waters by limiting the jurisdiction of the CWA through the Commerce Clause.
Ultimately, the Court in Sackett limited the scope of federal jurisdiction under the CWA to wetlands with a continuous surface connection and indistinguishable from a “water of the United States.” Within this definition, the court limited the definition of “waters” to the traditional bodies of water under the CWA with a relatively permanent, standing, or continuous flow. Sackett creates greater authority for states to manage their waters in addition to clarifying the responsibilities for the individual property owner under the CWA.
[1] Sackett v. Environmental Protection Agency, No. 21-454, slip op. at 15 (U.S. May 25, 2023).
[2] Id. at 27.
[3] Id. 5-6.
[4] Id. at 5.
[5] Id. at 22-23.
[6] Id. at 23.
[7] Id.
[8] Sackett v. Environmental Protection Agency, No. 21-454 (Thomas, C., concurring), slip op. at 2 (U.S. May 25, 2023).
[9] Id.
[10] Id. at 16.