SCOTUS strikes down WOTUS significant nexus test; Sackett decision issued

May 25, 2023

The Supreme Court issued its long-awaited decision on the Sackett v. EPA case today, unanimously rejecting the use of the significant nexus test to determine Clean Water Act (CWA) jurisdiction. The Sacketts of Idaho asked the Supreme Court to review a decision of the Ninth Circuit Court of Appeals, which upheld a District Court’s decision that a wetland they had filled on their property had a “significant nexus” to WOTUS and was subject to federal jurisdiction. This meant that EPA could force the Sacketts to restore the wetland and pay civil penalties. All nine justices said the Ninth Circuit was wrong to use significant nexus in determining whether the Sackett’s wetland was subject to federal CWA jurisdiction, and  agreed that the Ninth Circuit needed to rehear the matter with that understanding. Five justices significantly narrowed what the term “adjacent” means under the CWA in an opinion authored by Justice Alito. Alito wrote that a wetland can only be considered WOTUS if it has “a continuous surface connection with that water (a WOTUS), making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.” Four justices, led by Justice Cavanaugh, issued an opinion that rejected Alito’s view on this point, stating that every Administration since the start of the CWA has defined far more broadly than that in Alito’s opinion.

UEP will provide members with a more in-depth analysis of the decision in the next newsletter, but below are preliminary major takeaways from today’s decision:

  • As noted above, the significant nexus test can no longer be used.
  • The Biden Administration will need to revise its WOTUS rule substantially as about 50 percent of it deals with the use of the significant nexus test.
  • The gray area is in how EPA will interpret the term “relatively permanent waters.”  The Biden WOTUS rule said ephemeral streams were generally not permanent, therefore not WOTUS, and the Alito opinion appears to prevent EPA from backsliding that position.

In related news read “Supreme Court rules against EPA in dispute over regulating wetlands,” from CBS News.