Supreme Court Limits the Scope of Federal Wetland Regulations

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The U.S. Supreme Court handed down a decision today with potentially dramatic impacts. Specifically, the Court decided that wetlands are subject to protection under the Clean Water Act, but only to the extent they have a continuous surface water connection to other waters of the United States.

The Clean Water Act seeks to protect what are described as navigable bodies of water. Although wetlands themselves may not constitute navigable waters in a traditional sense, they may serve as transitional features where they exchange surface flow with other more traditional water features such as rivers, streams, lakes, or seas. Under today’s decision, known as Sackett v. EPA, in those situations where it is difficult to determine where the water ends and the land begins, the Federal Government may require permits for the discharge of dredged or fill material into the wetlands themselves. However, the practical effect of the Sackett decision is to eliminate the permitting requirements of the Army Corps of Engineers and EPA over wetlands that are not closely connected to other types of waters.

Despite the fears of some that the Supreme Court would entirely eliminate Federal protection of “non-navigable” wetlands, it did not do so. In fact, most of the Justices endorsed the idea of jurisdiction over wetlands to some extent or another. The big question, however, has been the extent of jurisdiction over wetlands that may be close to other waters but are not necessarily connected. Relying on its own decision from the 1980s (known as Riverside Bayview), a majority of the Court acknowledged that some wetlands that may not be navigable are nonetheless subject to regulation under the Clean Water Act.

Although the Court ruled unanimously in favor of the landowners in Sackett, there were a variety of views expressed with respect to the scope of federal jurisdiction. The majority opinion (authored by Justice Alito) purported to uphold jurisdiction over adjacent wetlands with a continuous surface connection to navigable waters, although two of the justices who signed the majority opinion (Thomas and Gorsuch) raised a question as to whether there should be any jurisdiction at all over non-navigable wetlands. Four other justices (Kavanaugh, Sotomayor, Kagan and Jackson) agreed that jurisdiction should extend to connected wetlands, but should also cover those wetlands that might be neighboring even if they lack a continuous surface connection.

The bottom line is that wetlands are protected under the Clean Water Act if they retain continuous flow (with some exceptions) to other surface waters. Of course, the Sackett decision does not affect the broad scope of California’s regulatory authority over waters, which picks up wherever Federal jurisdiction ends.

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