US Supreme Court Narrows Clean Water Act, Prairie Rivers Urges State Action to Protect Water

            The Sackett’s property was deemed a wetland that was part of the “waters of the United States” (and thus covered by the Clean Water Act) based on the “significant nexus” test that had come out of Justice Kennedy’s separate opinion in Rapanos. All nine of the Justices in Sackett rejected that test, and thus all nine voted to reverse the lower court ruling and remand the case for “further proceedings consistent with this ruling.”  In that respect, this was a unanimous judgment. But the majority opinion was signed only by 5 of the 9 justices. The other 4 would have interpreted the CWA differently.

            The majority opinion of five justices (all the conservatives except Kavanaugh)

            1. The term “waters of the United States” refers initially and primarily to “relatively permanent, standing or continuously flowing bodies of water” that form geographical features commonly termed streams, rivers, lakes, or oceans. They are covered by the CWA, however, only when the waters ultimately flow into interstate waters; only then are they considered waters “of the United States.” Put simply, the term covers “a relatively permanent body of water connected to traditional interstate navigable waters” but not to any other waters. 

Importantly, this interpretation excludes isolated lakes and ponds, no matter how large and permanent, if they do not ultimately flow into navigable rivers or the ocean.

            2.  As for wetlands, they are covered only if they are “adjacent” to the waters just described in 1. Adjacent, however, does not mean simply nearby or neighboring, as long understood. Rather, it means, more narrowly, having a continuous, surface water connection to permanent waters so that it is difficult to determine where the permanent water (defined in 1) ends and the wetland begins. The wetlands, that is, must be “indistinguishable” from the waters to which they are adjacent.

A clarification:  The Court notes that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” A wetland with such temporary interruptions thus remains covered by the CWA. But, query: how long can such an interruption be and still be “temporary”? (Kavanaugh raised the issue, among others; see below.)

Second clarification: “a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA.”

            3. The big point here: wetlands separated from the waters in 1, above, by a roadway, embankment, berm, levee, dike, dune, etc. are no longer covered by the CWA. So, wetlands behind levees are now excluded, as are all wetlands lacking a continuous surface-water connection to a waterway that ultimately flows across state lines or to an ocean.

            Separate opinion by Kavanaugh and the three “liberals.”

            1. They disagree on points 2 and 3 above, while ignoring the first point above. In their view, wetlands to be “adjacent” need not be “adjoining.” They are covered even if separated by a “man-made dike or barrier, natural river berm, beach dune, or the like.” This interpretation, they point out, has been consistently followed by all Corps/EPA regulations and all presidential administrations (including Trump) since 1977. Key quote: “As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.” (p. 5)

            2. They point out the grave difficulties of applying the majority’s test:

“How difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by the” CWA?

Similarly, “how does that test apply to the many kinds of wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How ‘temporary’ do ‘interruptions to surface connection’ have to be for wetlands to still be covered?”

“How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms?”

“Can a continuous surface connection be established by a ditch, swale, pipe, or culvert?”

            Separate opinion by Thomas, joined by Gorsuch, both of whom signed the majority opinion but who plainly disagreed with it. They suggested that the power of Congress over waterways was in fact much more limited. Congress could only regulate (they seemed to say) waterways actually used for navigation. In a footnote they even wondered whether the power of Congress was limited to simply the removal of obstructions to waterways—meaning that perhaps Congress had no power even to control water pollution in even the biggest inland rivers. In their view, the term navigable waters under the CWA should be understood as used in the 1899 Rivers and Harbors Act, which did deal only with waterway obstructions to navigation.

            Separate opinion by Kagan, joined by Sotomayor and Jackson. They joined Kavanaugh’s opinion, which they viewed as the principal concurring opinion. They wrote separately simply to highlight the importance of controlling water pollution and the key role of wetlands protection in that effort—matters of policy that Kavanaugh perhaps thought need not be of concern to the Court (whose role was simply to interpret and apply the CWA as written). More strongly than Kavanaugh, Kagan criticized the majority for substituting its own policy judgments for those of Congress.

            Assessment:  Sackett represents a major contraction of the coverage of the Clean Water Act. It does so by narrowly defining “adjacent” as set forth above, thereby excluding wetlands that are nearby, or that “neighbor,” rivers and lakes but do not actually adjoin them.  As Kavanaugh notes, these wetlands have been protected continuously since 1977, even under Trump-era rules. But the ruling also, with less fanfare, makes clear that “waters of the United States” only refers to waters that flow across or along state lines or into the ocean. Because only these waters are covered, only the wetlands adjacent to them are connected. This issue had never really been resolved by the Supreme Court—its earlier rulings had all dealt with wetlands. But this aspect of Sackett could be as important as the ruling’s narrow definition of adjacency. The Biden rules protected all relatively permanent standing or flowing bodies of water wherever located and without regard for whether they were connected to rivers that crossed or went along state boundaries. That approach has now been ruled out, it would seem. Covered waters are limited to those that are navigable waters and their non-navigable tributaries. [What does remain, though, some uncertainty here in the case of the biggest inland lakes. The Supreme Court decades ago said that the Great Salt Lake was navigable even though it was a dead-end lake. So the term navigable waters may extend a bit beyond waters that flow continuously into an ocean.]

By Eric T. Freyfogle,  Research Professor and Swanlund Chair Emeritus at the University of Illinois at Urbana-Champaign and long-time PRN member and former board member.