Sackett v. EPA: SCOTUS Decision on WOTUS

The Clean Water Act[1] (CWA) prohibits the discharge of pollutants into navigable water, which is defined in the CWA as “waters of the United States” (WOTUS). For decades, the definition of WOTUS has been a moving target. On May 25, 2023, the U.S. Supreme Court (SCOTUS) may have settled this debate in its Sackett v. Environmental Protection Agency decision where the Court narrows the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency’s (EPA) jurisdiction to regulate wetlands under the CWA.[2]

Sackett establishes that in order for the federal agencies to exercise jurisdiction over an adjacent wetland, a party needs to show “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.’”[3] The CWA covers “only those wetlands that are as a practical matter indistinguishable from waters of the United States.”[4]

By narrowing the definition of WOTUS, the Court consequently curtails federal jurisdiction to regulate wetlands. In order for a wetland to be regulated, it must have a “continuous surface connection” with covered waters under the CWA. It is not enough that a wetland is located nearby. The Court suggests certain situations where a wetland may or may not be regulated. For instance, the Court admits that there may be interruptions to the “continuous surface connection” in instances of “low tides or dry spells.”[5]

While it is certain that Sackett limits federal authority, we can only speculate the potential impact on USACE jurisdictional determinations, which help determine whether or not a particular development site is subject to USACE regulation under the CWA. USACE is not required to provide a jurisdictional determination, but the agency continues to offer them as a public service.[6] Prior to this decision, USACE found federal jurisdiction 75% of the time in the determinations.[7] Sackett may generate hesitancy for USACE to find that it has jurisdiction over a wetland on a development site because it may be difficult for the agency to determine what qualifies as “continuous surface connection” and where the wetland becomes “indistinguishable” from the covered waters without further regulatory guidance.

This decision may not impact states with more stringent water laws and regulations. Regardless of federal jurisdiction, Virginia has its own repository of water laws, Title 62.1 and associated programs therein, which may or may not rise and fall with the federal case law.

It is unpredictable how the Virginia Department of Environmental Quality (DEQ), federal agencies or the executive and legislative branches may respond to Sackett and what, if any, impact their responses may have on the practical implications of this decision. If this decision makes anything clear, it is that SCOTUS, EPA, and USACE have all previously missed the mark on interpreting the CWA.

Gentry Locke’s environmental team is happy to help you navigate these unchartered waters.

*UPDATE*: At the federal level, in response to the Sackett decision, USACE has paused the jurisdictional determination program, pending issuance of an updated WOTUS rule. We expect USACE and the EPA to issue a new rule that is consistent with the interpretation of WOTUS articulated in Sackett by September 1, 2023.

At the state level, on June 29, 2023, in response to the Sackett decision, Virginia DEQ released a memorandum announcing that DEQ will conduct its own State Surface Water Determinations (SSWDs) to facilitate the processing of Virginia Water Protection permits, without delays associated with the pending issuance of a new WOTUS rule by USACE and EPA. While DEQ had relied on USACE to review jurisdictional determinations, Virginia’s water laws authorize DEQ to issue independent SSWDs. To facilitate this SSWDs issuance process, DEQ will partner with private sector Professional Wetland Delineators, who are certified by the Virginia Department of Professional and Occupational Regulation.

[1] 33 U.S.C. §§ 1251-1389.

[2] Sackett v. Environmental Protection Agency, No. 21-454, slip op. (U.S. May 25, 2023) (to be cited as 598 U.S. ___ (2023)).

[3] Id. at 22.

[4] Id.

[5] Id. at 21.

[6] Id. at 13; see also Corps, Regulatory Guidance Letter No. 16-01, at 2 (2016) [hereinafter RGL 16-01].

[7] RGL 16-01, at 2.