The Sackett decision
In late May 2023, the Supreme Court issued its decision in Sackett v. EPA, 143 S.Ct. 1322. The issue before the Court was whether the Sacketts violated the Clean Water Act (“CWA”) by backfilling their property with dirt and rocks before building a home. The Court answered this question in the negative, concluding they did not violate the CWA.
The Court’s decision hinged on the meaning of “the waters of the United States.” The CWA bans “the discharge of any pollutant” into “navigable waters” but broadly defines “pollutant” to include “rock,” “sand,” “cellar dirt,” and more. Less helpful, it defines “navigable waters” as “the waters of the United States.” Thus, the Court had to decide whether the Sacketts filled a water of the United States.
The litigation between EPA and the Sacketts started about 15 years ago when the Sacketts challenged EPA’s determination that they violated the CWA by filling protected wetlands. Specifically, EPA claimed the wetlands on the Sacketts’ property were “waters of the United States” because they are adjacent to a tributary that feeds into a non-navigable creek, which then feeds into a lake that EPA designated as traditionally navigable. Included in EPA’s determination was a threat of penalties of over $40,000 per day if the Sacketts failed to restore the property pursuant to a restoration work plan EPA provided.
Ultimately, the Court held that “the CWA extends to only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are indistinguishable from those waters.” Id. at 1344 (internal quotation marks omitted). Stated differently, “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.” Id. at 1336 (internal quotation marks omitted) (quoting Rapanos v. U.S., 547 U.S. 715, 739 (2006) (quoting Webster’s New International Dictionary 2882 (2d ed. 1954) (Webster’s Second)).
Under this test, a party claiming a wetland is protected by the CWA must prove “the adjacent body of water . . . [is] a relatively permanent body of water connected to traditional interstate navigable waters,” and “the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id. at 1341 (quoting Rapanos, 547 at 742). In making this ruling, the Court adopted Justice Scalia’s test from his plurality decision in Rapanos and rejected Justice Kennedy’s broader “significant nexus” test from his concurrence in Rapanos. Applying this law to the facts, the Court concluded the wetlands on the Sacketts’ property were not protected by the CWA.
The concurrences rejecting the continuous surface connection test
Although all nine justices ruled in favor of the Sacketts, four of them disagreed with the majority’s “continuous surface connection test.” In a concurrence by Justice Kagan, with whom Justice Sotomayor and Justice Jackson joined, she accused the majority of “shelv[ing] the usual rules of interpretation” and “rewrit[ing] Congress’s plain instructions[.]” Sackett, 143 S.Ct. at 1360-1361 (Kagan, J., concurring in judgment). As support, she cited section 1344(g)(1) of the CWA, which uses the phrase, “wetlands adjacent thereto.” Id. at 1359. Relying on “ordinary language,” Justice Kagan said that “one thing is adjacent to another not only when it is touching, but also when it is nearby.” Id.
In her concurrence, Justice Kagan cited heavily to Justice Kavanaugh’s concurrence, with whom Justice Sotomayor, Justice Kagan, and Justice Jackson joined. Similar to Justice Kagan, Justice Kavanaugh said the majority departed from the text of the CWA and improperly equated the words “adjacent” and “adjoining.” He explained that “‘adjacent’ and ‘adjoining’ have distinct meanings.” Sackett, 143 S.Ct. at 1362 (Kavanaugh, J., concurring in judgment). Specifically, “‘adjacent’ is broader than ‘adjoining’ and does not require that two objects actually touch.” Id. at 1364. Ultimately, like Justice Kagan, he accused the majority of rewriting the CWA and said the continuous surface connection test will have “negative consequences for waters of the United States.” Id. at 1368.
Writing for the majority, Justice Alito called the accusations of rewriting the CWA “unfounded.” Id. at 1344. He said the concurrences by Justice Kagan and Justice Kavanaugh ignore the “statutory provision that limits the CWA’s geographic reach to ‘the waters of the United States’” and fail “to explain how the wetlands included in their interpretation fall within a fair reading of ‘waters.’” Id.
How Sackett impacts Hoosiers
With Sackett, the Court narrowed the scope of wetlands protected by the CWA. However, a person who builds or places fill on land containing regulated wetlands still faces potential federal criminal penalties, including imprisonment, and civil penalties, including fines of over $60,000 per day. Id. at 1330 (citing 28 U.S.C. § 2461; 33 U.S.C. § 1319(d); 88 Fed. Reg. 989 (2023) (to be codified in 40 C.F.R. § 19.4)).
In addition, the State of Indiana regulates isolated wetlands and can impose criminal and civil penalties in certain situations. See generally Ind. Code § 13-30-10-6. Although many of Indiana’s wetlands have been lost, there still are approximately 813,000 acres of wetlands in the State. (Ind. Wetlands Task Force Final Report, available at https://www.hecweb.org/wp-content/uploads/2022/09/Final-Wetlands-Task-Force-Report-9.26.pdf.)
Because of the complexity of wetland regulation and potential criminal and civil penalties associated with violating federal or state environmental laws, Hoosiers who do any construction-related activity in wetlands face significant risks. You can reduce these risks by first seeking the advice of a qualified environmental attorney.
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Jackson Schroeder is an associate in the Bose McKinney & Evans Environmental Group. He can be contacted at jschroeder@boselaw.com or 317-684-5159.
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