The United States Supreme Court, on May 25, 2023 in EPA vs Sackett, No. 21-454, sharply curtailed the federal Clean Water Act’s protection of the nation’s wetlands and, did so in such a way as to raise questions about the extent to which the Act covers waters that are not “traditional navigable waters.”

Although all nine justices in Sackett concurred that the wetlands at issue were not covered by the Clean Water Act, only five justices joined the majority. The five-justice majority resolved the question of what wetlands are covered by the Act by determining the meaning of the statutory term “waters of the United States”

The Clean Water Act governs the discharge of pollutants into “navigable waters” and defines “navigable waters” as “waters of the United States.” The question the majority addressed was whether the term “waters of the United States” limits the Act’s coverage to traditional navigable waters or also includes other waters with a sufficient nexus to navigable waters? The majority, using a commonplace definition of the word “waters”, concluded that the “waters of the United States” consist “only of those relatively permanent, standing or continuously flowing bodies of water …described in ordinary parlance as ‘streams, oceans, rivers and lakes.’” p.14. Later in its opinion, the majority described “waters of the United States” as “a relatively permanent body of water connected to traditional interstate navigable waters.” p.22 Wetlands cannot readily be characterized as covered waters under the majority interpretation of “waters of the United States”. However, the CWA contains an express provision stating that the Act covers “wetlands adjacent” to certain navigable waters. To harmonize its interpretation of “waters of the United States” with the CWA’s express inclusion of certain adjacent wetlands, the Supreme Court held that the only wetlands protected by the Act are those “with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right so that they are ‘indistinguishable’ from those waters.” p.27. To be an indistinguishable part of such a body of water, it must be “ difficult to determine where the water ends and the wetland begins”. p.21

The four concurring justices left unchallenged the majority’s conclusion that “waters of the United States” refers primarily to navigable and interstate waters, but rejected the majority’s restrictive interpretation of the word “adjacent”. As Justice Kagan explained in her concurring opinion “ in ordinary language, one thing is adjacent to another not only when it is touching but when it is nearby.” p.1 And, as Justice Kavanaugh explained in his concurring opinion, “the difference between “adjacent” and “adjoining in this context is not merely semantic or academic.” Wetlands separated from neighboring waters by a river berm, dune or the like protect those waters “by filtering pollutants, storing water and providing flood control.” p. 13.

On Thursday, October 26, 2023, at 10:00 am Pacific Time, Dividing the Waters, in collaboration with the Environmental Law Institute, will host a ninety-minute webinar that critically examines the Sackett decision, considers the ramifications of the decision, and examines the steps that states and tribes can take to protect wetlands and other waters not covered by the Clean Water Act.