On August 29, 2023, the United States Environmental Protection Agency (U.S. EPA) and the Army Corps of Engineers (ACOE) issued a direct final rule without public comment amending the definition of the “Waters of the United States” (WOTUS) which governs the scope of federal jurisdiction under the Clean Water Act (CWA). U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced which wetlands are federally protected. The Court limited federal jurisdiction to only wetlands that are adjacent to navigable waters and those with a continuous surface connection to relatively permanent waters adjoining navigable waters.
The Sackett decision effectively ends decades of debate over the scope of federal jurisdiction over wetlands. There have been at least five different U.S. Supreme Court decisions involving the scope of federal jurisdiction under the CWA. These prior decisions include:
- U.S. v. Riverside Bayview Homes (1985)- Court affirmatively decides adjacent wetlands are protected under the CWA. Does not decide the scope of federal jurisdiction other than adjacent wetlands.
- Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. ACOE (2001)- Overruled ACOE jurisdiction of isolated wetlands based upon the migratory bird rule.
- Rapanos v. U.S. (2006)- Plurality decision which includes test adopted by Justice Kennedy known as the “significant nexus test” which extended federal jurisdiction to non-adjacent wetlands.
- U.S. v. Hawkes (2016)- Allows challenges in court to jurisdictional decisions (JDs) issued by the ACOE.
- County of Maui v. Hawaii Wildlife Fund (2020)- Extended federal jurisdiction to direct discharges to navigable waters or when there is a “functional equivalent” to a direct discharge.
Since the CWA was adopted in 1972, which wetlands are federally protected has been debated and various presidential administrations have attempted to adopt regulations setting for the limits of federal jurisdiction. Unlike the prior Court decisions, the Sackett decision left no ambiguity as to which wetlands are entitled to federal protection. The Court developed the new “continuous surface connection test” which includes:
- The wetland must be adjacent to a relatively permanent body of water connected to a traditional interstate navigable waterway
- The wetland has a continuous surface connection with the water, making it difficult to determine where the “water” ends and the “wetland” begins.
The Sackett decision effectively overturns Rapanos v. U.S. which had expanded federal jurisdiction to also include wetlands with a “significant nexus” to permanent waters. Under the significant nexus test, a wetland that was connected to a less than permanent stream (i.e. ephemeral or intermittent) were protected if impacts to the wetland could affect the chemical, physical and biological integrity of the downstream navigable water. With Sackett, the “significant nexus” test was eliminated as a basis for extending federal jurisdiction over wetlands.
To provide a visual representation of what the Sackett decision means with regard to protections of wetlands, consider the following two images used in a recent presentation I made with Dr. Michael Liptak (Enviroscience). The first slide shows wetlands and various connections to perennial or intermittent streams (i.e. potentially regulated wetlands).
The second slide shows the wetlands that will be federally protected following Sackett.
The narrow scope of jurisdiction adopted by the majority of the Court left Justice Kavanaugh to note that the Court was narrowing federal jurisdiction greater than the last eight presidential administrations.
State Protection of Wetlands
One the reasons the Court was willing to significantly reduce the scope of federal jurisdiction was to defer to the States in terms of protections of wetlands and streams. However, a recent study by the Environmental Law Institute demonstrates that most States have not adopted any regulations to protect waterways beyond the protections afforded under the CWA.
Ohio did enact protections of wetlands beyond the CWA. Following SWANCC v. U.S. ACOE, Ohio enacted protections for so called isolated wetlands under Ohio Revised Code 6111.021 to 6111.028. The term “isolated” refers to wetlands that are not directly adjacent to permanent or navigable waterways. Therefore, in Ohio, a permit is still needed in order to impact isolated wetlands that are not protected under the CWA.
What is left to decide following Sackett?
While Sackett clearly defines the limits of federal jurisdiction of wetlands under the CWA, there remains an open question as federal jurisdiction over intermittent and ephemeral streams. While the Court did not directly address intermittent and ephemeral streams in Sackett, the Court did determine that only wetlands that are adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters” are protected. This language suggests the Court will decide both ephemeral streams (those with flow only when it rains) or intermittent streams (those with flow only during certain times of year) are not protected under the CWA. However, we will have to wait and see when this issue inevitably reaches the Supreme Court.