WASHINGTON, DC – The Supreme Court unanimously scaled back the Environmental Protection Agency’s power under the Clean Water Act (CWA) by defining the “waters of the United States” on Thursday in Sackett v. EPA.
This is the ongoing saga of the Sackett family. They’re an Idaho couple who bought a lot in a residential neighborhood in 2004 to build a house, and in 2007 started preparing the property for construction. Then the EPA told them that their lot might be a federally protected wetland and that they had to restore and abandon the property or face $40,000 per day in fines.
They were also told that they had no right to take this situation to court because thousands in daily fines were not a “final action” by EPA.
History repeated itself twice here. First, this is the second time the Sackett family’s case has made it to the Supreme Court. The first was in 2012, when the Supreme Court held that, yes, indeed, the Sacketts did have the right for a federal court to hear their case immediately. Second, both the 2012 court decision and Thursday’s decision were unanimous.
“This case concerns a nagging question about the outer reaches of the Clean Water Act (CWA), the principal federal law regulating water pollution in the United States,” Justice Samuel Alito began in his majority opinion for five justices.
“The Act applies to ‘the waters of the United States,’ but what does that phrase mean?” Alito continued. “Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, or playa lakes? How about ditches, swimming pools, and puddles?”
‘“The Act prohibits ‘the discharge of any pollutant’ into ‘navigable waters,’” the opinion said, explaining that Congress passed the CWA to give the EPA a role to limiting water pollution.
“The CWA is a potent weapon. It imposes what have been described as ‘crushing’ consequences ‘even for inadvertent violations,’” the opinion continued. “Property owners who negligently discharge ‘pollutants’ into covered waters may face severe criminal penalties including imprisonment.”
But “the CWA prohibits the discharge of pollutants into only ‘navigable waters,’ which it defines as ‘the waters of the United States, including the territorial seas,’” Alito noted, getting to the heart of the case. The Army Corps of Engineers used “a 143- page manual to guide officers when they determine whether property meets this definition.”
Within a few years, the agencies had interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres of wetlands and virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.
But the EPA continued to claim more power under the CWA:
More recently, the agencies have engaged in a flurry of rulemaking defining the waters of the United States. In a 2015 rule, they offered a muscular approach that would subject the vast majority of the nation’s water features to a case-by-case jurisdictional analysis. Although the rule listed a few examples of “waters” that were excluded from regulation like puddles and swimming pools, it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters.
The Trump administration repealed the Obama rule in 2019, but a federal judge threw out the Trump rule, and the Biden administration reimposed a broad rule that could be characterized as a power grab by the federal government.
“And because the CWA can sweep broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties,” Alito noted.
The court then permanently scaled back the EPA’s reach, holding that “the CWA’s use of “waters” encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
“This reading also helps to align the meaning of ‘the waters of the United States’ with the term it is defining: ‘navigable waters,’” the majority reasoned.
Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read “navigable” out of the statute, holding that it at least shows that Congress was focused on its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.
“At a minimum, then, the use of ‘navigable’ signals that the definition principally refers to bodies of navigable water like rivers, lakes, and oceans,” the opinion explained, reinforcing a limit with wide-ranging implications for federal environmental regulations.
“Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” emphasizing the new limit on EPA’s reach.
As relevant to the Sackett property, this means:
…that “waters” may fairly be read to include only those wetlands that are “as a practical matter indistinguishable from waters of the United States,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins. That occurs when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.
“The Clean Water Act anticipates a partnership between the States and the Federal Government,” the majority opinion concluded. “States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.”
Justice Clarence Thomas joined the majority but also would have gone further, writing that he would also define the CWA’s terms “navigable” and “of the United States” to impose still more limits on the EPA. Justice Neil Gorsuch signed onto Thomas’s concurring opinion.
Justice Brett Kavanaugh would not go as far as the majority, with the three liberal justices joining his opinion. Justice Elena Kagan also wrote her own opinion that did not go as far as Alito’s opinion.
The case is Sackett v. EPA, No. 21-454 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
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