EPA authority to regulate wetlands clobbered by Supreme Court

Limiting the government’s authority to regulate wetlands under the Clean Water Act, the Supreme Court ended a nearly two-decade-old dispute Thursday. 

The ruling from the court was unanimous, with the justices affirming summary judgment in the suit by Chantell and Michael Sackett against the Environmental Protection Agency. 

“For more than a half century, the agencies responsible for enforcing the Act have wrestled with the problem and adopted varying interpretations,” Justice Samuel Alito wrote for the court. 

He continued: “When we addressed the question 17 years ago, we were unable to agree on an opinion of the Court. Today we return to the problem and attempt to identify with greater clarity what the Act means by ‘waters of the United States.’” 

In 2004, the Sacketts bought property that is connected indirectly — by way of a “shallow subsurface flow” — to the popular Idaho tourist destination Priest Lake. Under the Clean Water Act, the EPA is allowed to regulate “waters of the United States.” And while the lake itself clearly falls under EPA authority, less clear was whether the Clean Water Act applies to subsurface flow or only continuous surface connection to navigable water. 

The Army Corps of Engineers defined waters of the United States as navigable waters — including wetlands adjacent to these waters — in its regulations. The court now offers a new definition.

“In sum, we hold that the CWA 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,” Alito wrote. “This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.” 

Regulatory confusion over the Sacketts' property drew high court intervention over a decade before the latest dispute. Although the EPA instructed the Sacketts to apply for a permit under the Clean Water Act just to build on their land, the couple had already begun construction on their lot, filling an area with sediment, before receiving the EPA order. This left the Sacketts facing fines of up to $40,000 for every day the property was not returned to its original state. 

In 2012, the high court found unanimously that the Sacketts could challenge that EPA compliance order under the Administrative Procedures Act. On remand, however, the lower courts ruled against the Sacketts again. The couple again appealed, with the justices resolving last year to settle the case for good. 

Alito wrote Thursday that the EPA's interpretation leaves all waters and wetlands open to regulation. He said the agency’s “unchecked definition” of waters of the United States leaves landowners at risk of criminal prosecution. 

“This puts many property owners in a precarious position because it is ‘often difficult to determine whether a particular piece of property contains waters of the United States,’” Alito wrote.  

The justices agreed that the Sacketts should win their fight against the EPA’s regulation, but they were divided on how. 

Alito’s opinion was joined by Justices Clarence Thomas, John Roberts, Neil Gorsuch, and Amy Coney Barrett. It says the Clean Water Act should only extend to wetlands that are indistinguishable from waters of the United States. This means the water connected to the wetland must first be found to be a water of the United States. Once that is established, the wetland must have a continuous surface connection with that water. 

Justice Brett Kavanaugh — joined by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — wrote a separate opinion, agreeing with the court’s judgment but not Alito’s reasoning. Kavanaugh said he disagrees with the new test for categorizing wetlands under the Clean Water Act. 

“In my view, the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” the Trump appointee wrote. 

Instead of the Clean Water Act covering adjacent wetlands, Kavanaugh says the new test looks only at adjoining wetlands. 

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote. 

The Justice Department did not immediately respond to a request for comment on the ruling.