The Supreme Court Limits Federal Authority To Regulate Wetlands

Published date06 June 2023
Subject MatterEnvironment, Litigation, Mediation & Arbitration, Energy and Natural Resources, Environmental Law, Trials & Appeals & Compensation, Water
Law FirmKramer Levin Naftalis & Frankel LLP
AuthorAndrew Otis, Charles Warren, Jeffrey L. Braun, Toni L. Finger and Lauren T. Katz

Few five-word phrases have vexed the justices of the United States Supreme Court more than "waters of the United States" as used in the Clean Water Act (CWA or Act). The Court has attempted to define the term, and thereby the scope of the federal government's jurisdiction to regulate activities that impair the nation's water quality, in four cases over the past 35 years. The Court's attempt 17 years ago in Rapanos v. United States, 547 U.S. 715 (2006), produced five opinions but no majority, only a plurality, and no clear guidance for regulators.

In Sackett v. Env'tl Prot. Agency, No. 21-454, 2023 WL 3632751 (U.S. May 25, 2023) (Sackett II), the Court trimmed its number of opinions down to four and, unlike in Rapanos, produced a majority opinion that attempts to define the statutory term and the limit of federal authority to regulate wetlands. However, the Court did not produce effective guidance to assist regulators in implementing the underlying goals of the CWA. Instead, the decision is likely to continue the ongoing debate between the executive branch and the Court over the reach of the wetlands regulatory provisions of the Act. Furthermore, by limiting the reach of the CWA, the Court's majority opinion will further impact federal environmental review and related litigation that could have significant implications for those planning to execute ' or challenge ' a myriad of different development projects ranging from mining to pipelines to real estate developments.

Background

Originally enacted in 1972 and amended in 1977, the CWA authorizes the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) to regulate the deposit of dredged or fill materials into "navigable waters," defined as "waters of the United States" and including wetlands that are "adjacent" to such waters. See 33 U.S.C. ' 1311(a), 1344(a), 1344(g), 1362(7).

In 2007, Michael and Chantell Sackett purchased two-thirds of an acre of property near Priest Lake, Idaho, where they filled in wetlands with dirt without seeking any permits to prepare to build a home. On one side, the Sacketts' land is across a road from an unnamed tributary that feeds into navigable, intrastate Priest Lake. The EPA determined that the wetlands on the Sacketts' property are adjacent to waters of the United States and, in late 2007, sent the Sacketts a compliance order ordering them to remove the material and informing them of possible fines under the CWA if they did not. The Sacketts, represented...

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