Court Curtails EPA Authority Under Clean Water Act

The Supreme Court today curtailed EPA's authority to regulate wetlands under the Clean Water Act. The sharply divided ruling is a victory for property owners and a blow to federal regulatory authority over certain wetlands.

The case, Sackett v. EPA, tested whether and how EPA could regulate wetlands that aren't connected on the surface to "waters of the United States." Five justices said that EPA could only regulate wetlands that are connected on the surface to "waters of the United States." (Two of the five would've limited the Act even further, so that EPA couldn't regulate any wetlands, unless they were actually navigable waters of the United States.) Four justices disagreed and argued that the CWA authorized EPA to regulate wetlands that were connected to waters of the United States, even if that connection wasn't on the surface.

All nine agreed that the lower court applied the wrong test.

The CWA prohibits the discharge of pollutants into "navigable waters," defined as "the waters of the United States" and waters that are "adjacent" to them. EPA regulations provide that "adjacent wetlands are covered by the Act if they 'possess a "significant nexus" to' traditional navigable waters." This means that wetlands are "adjacent" when they "neighbor" covered waters, even if the wetlands and the covered waters are separated by dry land.

The plaintiffs, Michael and Chantell Sackett argued that EPA's regulation violated the CWA when EPA ordered them "to restore the Site," including wetlands, after they backfilled their property to build a home.

The Court ruled for the Sacketts and agreed that EPA's regulation violated the CWA. The court held that the CWA authorizes EPA to regulate only those wetlands that are "as a practical matter indistinguishable from waters of the United States," such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." This means that the CWA covers only those wetlands that have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands." 

The Court said that EPA needs "clear [statutory] language" if it seeks "to significantly alter the balance between federal and state power and the power of the Government over private property." The Court said that the CWA (even its use of "adjacent") didn't provide this clear authority. The Court also said that EPA's interpretation "gives rise to serious vagueness concerns in light of the CWA's criminal penalties," because the EPA's interpretation may not define the statute "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and "in a manner that does not encourage arbitrary and discriminatory enforcement."

Justice Thomas, joined by Justice Gorsuch, argued that the CWA is even narrower, extending only to actually navigable waters of the United States--those that are "capable of being used as a highly for interstate or foreign commerce." Under this approach, the CWA probably wouldn't apply to any wetlands. He tied this standard to Congress's Commerce Clause power, and then took aim at the Court's Commerce Clause jurisprudence, arguing that today it "significantly depart[s] from the original meaning of the Constitution."

Justices Sotomayor, Kagan, Kavanaugh, and Jackson argued (in separate concurrences) that the Court's approach erroneously narrowed the CWA. They argued that "adjacent" waters under the CWA include not just "adjoining" wetlands (as the majority would have it) but also "wetlands separated from a covered water only by a man-made dike or barrier, natural river, berm, beach dune, or the like." Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued for this more expansive reading. Justice Kagan, joined by Justices Sotomayor and Jackson, went further, arguing that the Court erred in creating and applying the plain statement rule and that the Court (once again) mangled an environmental statute in order to achieve its preferred policy objectives.