To look at the headlines today, you might think the sky was falling and the United States was headed off into a ditch somewhere—all because of the United States Supreme Court.  Headlines proclaiming that the Supreme Court “delivered a blow to wetlands” (NBC News), “shrinks clean water protections” (The Guardian), “weakens clean water protections” (Vox) or even more bombastic: “gutted the Clean Water Act” (Washington Post), litter the top news stories on the internet.  But is that true?

The background of Sackett vs. EPA is pretty simple.  In 2007, the Sackett family, who owned a residential lot 300 feet back from the shore of Priest Lake in Idaho, began filling and leveling their property to prepare the lot and build their house.  After beginning work, they received a notice from the EPA to stop work because the government believed the lot contained jurisdictional wetlands subject to the Clean Water Act. (“CWA”) The CWA was originally written to bar the discharge of pollutants into the nation’s waterways.  Under a 2002 regulation promulgated by the EPA and Army Corps of Engineers however, the definition of “pollutants” was dramatically expanded to include not just pollutants, but also dirt, clean fill, sand, rocks, etc. if placed into “navigable waters.”

The CWA, in turn, defines navigable waters as “waters of the United States.” Unfortunately for the Sackett’s, the EPA’s thinking was that the wetlands on the Sacketts’ lot fed into a non-navigable creek that then emptied into Priest Lake, which is navigable, and therefore by placing additional dirt on their lot, the Sackett’s were breaking the law.  The 9th Circuit Court of Appeals applied the “significant nexus” test previously authored by Anthony Kennedy in his concurrence for Rapanos vs. United States, and, finding a nexus, the Court ruled that the Sackett’s needed to obtain a 404 permit, which would also force them to get a 401 water-quality Certification and likely provide mitigation, all to expiate the environmental harm caused by putting clean dirt on their lot.

Yesterday, the Supreme Court overruled the 9th Circuit, outlining a more stringent test, more solidly based on the actual text of the Clean Water Act.  In essence, the Court cited the Act itself, finding that the term “waters” referred to “relatively permanent bodies of water” such as lakes and rivers—in other words, waters that are actually navigable.  The ruling conceded that when the law is read as a whole, some adjacent wetlands also qualify as “waters of the United States, but wetlands that are physically separate from actual navigable waters are not jurisdictional under the CWA.  The new rule, which is simply based on the original jurisdictional test outlined in the statute passed by the legislature, is that the Act applies to wetlands where it is hard to determine where the water ends and the wetland begins, or as articulated by Justice Alito, where: “as a practical matter [the wetland is] indistinguishable from waters of the United States” because it has a “continuous surface connection” with a navigable body of water.  

The Court went on to explain that under the Kennedy concurrence in Rapanos, which EPA used to define a wetland in Sackett, it would be difficult if not impossible for many landowners to determine whether the CWA applies to their property.  As a practical matter, this is important because landowners could face “severe criminal sanctions for even negligent violations” of the law.  As one who has represented landowners in enforcement actions brought by the Amy Corps of Engineers and/or EPA, I know this to be true.

Interestingly, all the justices, even the dissenters, sided with the Sackett’s, finding that the CWA does not apply to the wetlands on the Sackett’s lot.  And while Justice Clarence Thomas wrote a concurring opinion, joined by Justice Neil Gorsuch, saying that the case “curbs a serious expansion of federal authority,” which reduced the federal government “into something resembling a local zoning board;” the four dissenting justices (Sotomayor, Kagan, Kavanaugh, and Brown-Jackson) focused on the policy issue of “significant repercussions for water quality.”

Whether you agree with Damien Schiff from the Pacific Legal Foundation who views the decision as “return[ing] the scope of the Clean Water Act to its original and proper limits,” or Sam Sankar of Earthjustice who said it “undoes a half-century of progress,” the sky is not falling.  If Congress wants to expand the jurisdiction of the CWA, it just has to act.  In the meantime, the individual states can choose to increase their regulatory reach, just as California has done. As E. Joaquin Esquivel, chair of the California State Water Resources Control Board said of the ruling, “We saw these challenges coming and we were able to adapt.”