Today, the U.S. Supreme Court issued its long-awaited decision in the Sackett v. EPA case, in which it narrowed the test for determining whether wetlands are subject to federal jurisdiction under the Clean Water Act, thereby reducing the scope of waters covered by Clean Water Act regulation. In a 5-4 vote, the opinion was written by Justice Alito, who was joined by Justices Roberts, Thomas, Gorsuch, and Barrett. 

In its Opinion the Court ruled that in order to be regulated by the Clean Water Act, wetlands adjacent to traditionally navigable waters must qualify as “waters of the United States” in their own right by being indistinguishably part of a body of water that itself constitutes “waters” under the Clean Water Act. In so holding, the Court declined to follow US EPA’s interpretation of Waters of the United States, which included those wetlands that possess a “significant nexus” to traditional navigable waters or those that are adjacent to, or “neighboring,” traditional navigable waters. Rather that follow the significant nexus test, the Court found that to be considered “adjacent” and therefore covered under the Clean Water Act, there must be a continuous surface connection, making it difficult to determine where the water ends and the wetland begins.

Justice Kavanaugh, joined by Justices Sotomayor, Kagan, and Jackson, wrote a concurring opinion in which he agreed with the Court’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered under the Clean Water Act, but disagreed with the new test the majority opinion lays out. Justice Kavanaugh specifically disagreed with the Court’s interpretation of “adjacent” wetlands under the Clean Water Act to mean only “adjoining” wetlands, noting that “adjacent” and “adjoining” have distinct meanings. Justice Kavanaugh stated “the Court’s ‘continuous surface connect’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents” and further found that “the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control through the United States.”

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