What Happened
On May 25, 2023, the U.S. Supreme Court issued the long-anticipated Sackett v. EPA decision narrowing the interpretation of federal waters of the United States (WOTUS). Specifically, the court determined that wetlands on the Sackett property, located in northern Idaho, were not subject to federal Clean Water Act (CWA) regulations because they are distinguishable from any other jurisdictional water. In essence, the opinion determined that the Clean Water Act extends to only those wetlands 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. In addition, the decision abandons the existing significant nexus test for adjacent wetlands moving forward.
Five justices provided the majority opinion that federal CWA authority does not extend to adjacent wetlands lacking an “indistinguishable continuous surface connection” to waters, and ultimately a traditional navigable water. However, wetlands with a continuous surface connection will remain jurisdictional under the CWA. The decision relies primarily on the CWA congressional statute as a basis for why certain adjacent wetlands should not be included in the definition of WOTUS. Four justices concurred with the decision for the Sackett property but disagreed with the test that adjacent wetlands must have an…
