A half century after the United States Congress passed, by overwhelming majority, the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (“CWA” or the “Act”), five justices of the Unites States Supreme Court, in Sackett v. Environmental Protection Agency (598 U.S. 651 (2023), significantly narrowed the scope of the federal government’s jurisdiction to regulate discharges of pollutants into “waters of the United States” (“WOTUS”). The Sackett decision clarified a series of conflicting definitions of WOTUS that evolved over time, and dramatically reduced the geographic reach of CWA jurisdiction eliminating many wetlands and streams from federal protection. In doing so, the Court has limited the jurisdiction of the two federal agencies responsible for implementing the CWA – the U.S. Army Corps of Engineers (“ACOE”) and U.S. Environment Protection Agency (“USEPA”) – to regulate discharges of pollutants into such waters.
For background, the CWA authorizes the ACOE and USEPA to administer §404 permitting and enforcement that prohibits unpermitted discharges of dredge and fill in wetlands. Section 402 that prohibits discharges of pollutants into WOTUS from any point source without a permit is administered by USEPA alone. Jurisdiction under both §402 and §404 depend on the same statutory definition of WOTUS. It is important to understand that Sackett only considered wetlands permitting regulated under §404. It did not explicitly alter or overrule the Court’s earlier decision in County of Maui, Hawaii, v. Hawaii Wildlife Fund (140 S. Ct. 1462 (2020) that expanded §402 jurisdiction over industrial discharges into unregulated groundwater that is subsequently indirectly conveyed (through groundwater) into WOTUS. In Maui, the Court held that such indirect discharges are covered by §402 if they are the “functional equivalent” of direct discharges into WOTUS.
The protracted debate over the proper definition of WOTUS dates back to the 1980s. However, until Sackett the U.S. Supreme Court’s 2006 decision in Rapanos v. United States set forth the legal framework for the ensuing definitional uncertainty manifested in successive judicially invalidated USEPA rulemaking efforts over the scope of the Act’s jurisdiction. In Rapanos, the Court was asked to determine the scope of the CWA’s jurisdiction over wetlands that are not traditionally “navigable waters” as defined by the Act. The plurality opinion by Justice Scalia held that federal jurisdiction should extend only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface water connection to” such relatively permanent waters. In a concurring opinion, Justice Kennedy agreed with the plurality that the statutory term “WOTUS” extends beyond water bodies that are traditionally considered “navigable” but disagreed with the scope of jurisdiction over wetlands. Justice Kennedy held that wetlands are WOTUS “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Of these two “tests” for identifying WOTUS, Justice Kennedy’s so-called “significant nexus” test was interpreted to be broader. Following Rapanos, the USEPA and ACOE had authority to exercise jurisdiction over wetlands that met either definition.
In Sackett, the petitioners expressly asked the Court to decide whether Rapanos should be revisited “to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act?” The Court answered this question in the affirmative, expressly rejecting the “significant nexus” test established in Justice Kennedy’s concurring opinion and adopting the test set forth in Justice Scalia’s plurality opinion. Now jurisdictional wetlands “must be indistinguishably part of a body of water that itself constitutes [WOTUS].” This means that following Sackett, wetlands for §404 purposes that otherwise possess a hydrological nexus to traditional navigable waters are not within federal jurisdiction if they are otherwise “distinguishable from any possibly covered waters”, i.e. they lack a continuous surface water connection. The Court also limited all covered waters to relatively permanent, large, continuously flowing or standing waterbodies.
As noted, while the Sackett decision appeared to expressly settle the reach of CWA federal jurisdiction in the §404 wetlands context, it did not expressly or indirectly overrule or amend the Maui case that established §402 jurisdiction over certain indirect discharges. So, for now, indirect discharges that are the “functional equivalent” of direct discharges to WOTUS still require §402 NPDES permits pursuant to Maui. Further, arguably, filling now non-jurisdictional wetlands could trigger §404 jurisdiction if the discharges are indirectly conveyed to a traditional navigable water, i.e. a WOTUS. USEPA guidance based on the Court’s decision in Maui is expected to be forthcoming.
Despite the recent evolution of federal authority in this area, many states, including New Hampshire, that administer their own robust wetland and water pollution laws may not experience significant changes. The regulated community should be aware that filling and dredging of wetlands that are no longer subject to federal authority may still require State wetland permits pursuant to separate State statutes (that are entirely unaffected by Sackett). In addition even if some pollutant discharges, including discharges of industrial wastewater or stormwater, may no longer be subject to federal §402 jurisdiction, State permitting programs applicable to pollutant discharges likely may apply.
Ultimately, as USEPA attempts, for the tenth time, to establish regulations determining the reach of the CWA following Sackett – regulations that will almost certainly be challenged in litigation – the regulated community is well-advised to consult with qualified legal counsel to navigate the federal jurisdictional changes and the intersection of them with State environmental laws and permit programs.