U.S. Supreme Court Weighs in on Monumental Jurisdictional Waters Case
The United States Supreme Court issued its decision on Sackett v. EPA on May 25, 2023, which will have significant impacts to permitting and enforcement involving wetlands. In Sackett, the Court put the final nail in the coffin on the attenuated “significant nexus” test that had been used in prior jurisdictional waters determinations, and instead the Court now requires a water body to be “relatively permanent” or otherwise actually connected to a “relatively permanent” water source. Mere adjacency to a relatively permanent water body is not enough to confer federal jurisdiction, meaning that isolated wetlands, for example, are not considered waters of the United States (“WOTUS”).
An understanding of the now defunct “significant nexus” approach is critical to interpret the Court’s holding. Environmental groups had advanced a rule that relied upon hydrologic connections, even if such connections were attenuated and sometimes interrupted. Such test was approved by a plurality opinion in the 2006 case, Rapanos v. United States. 574 U.S. 715 (2006). Under that approach, EPA and USACE claimed broad authority to regulate all wetlands with a significant nexus to a traditionally navigable waters, which often encompassed wetlands without an apparent surface connection to WOTUS. While both the Trump and the Biden administrations have attempted to promulgate new definitions of WOTUS, the Sackett opinion settles the debate on the definition of wetlands.
This opinion should resolve 20+ years of uncertainty surrounding on-the-periphery waters that federal regulators might seek to regulate. The Sackett opinion limits federal regulation of wetlands and finds that the Clean Water Act “extends to only wetlands that are as a practical matter indistinguishable from waters of the United States.” This decision will reclassify thousands of acres of wetlands that were previously subject to the Clean Water Act and will downsize wetland footprints tied to permitting, mitigation, and enforcement. The decision also undercuts the Biden Administration’s most recent WOTUS rulemaking that included aspects of the hydrological connection approach now-rejected by the Court.
For more information on the impacts of this decision and its implications on compliance with federal and state permits, please route questions through Mike Gershon, Lloyd Gosselink Water Practice Group Chair, at firstname.lastname@example.org or 512.322.5872. This update is authored by Jessie Spears at email@example.com 512.322.5815 and Nathan Vassar at firstname.lastname@example.org or 512. 322.5867.