Client Alert- Supreme Court Establishes Test for Wetlands and Waters

The U.S. Supreme Court’s recent (5/25/23) decision in Sackett v. Environmental Protection Agency (598 U.S. ___ (2023)) attempts to clarify the issue of when wetlands are considered  “waters of the United States” for purposes of the Clean Water Act (“CWA”).

The case involved  property owners in Idaho who filled a portion of wetlands on their property to construct a house. The US EPA informed them their activity violated the Clean Water Act, which prohibits discharging pollutants into “the waters of the United States” (citing 33 U. S. C. §1362(7)), and ordered restoration of the site.

The EPA classified the wetlands on the property as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The property owners sued, alleging that their property was not subject to EPA jurisdiction as  “waters of the United States.”

This US Supreme Court decision overturns prior decisions in favor of the US EPA,  and attempts to set forth a clear standard for how wetlands should be addressed under the CWA.

The Clean Water Act, adopted in 1972, prohibits “the discharge of any pollutant” into “navigable waters.” 33 U. S. C. §§1311(a), 1362(12)(A).  “Navigable waters,” are defined as “the waters of the United States, including the territorial seas,” 33 U. S. C. §§1311(a), 1362(7), (12)(A) (2018 ed).

The Court referenced a prior US Supreme Court decision, Rapanos v. US (547 U.S. 715 (2006)), where the Court addressed whether, for purposes of the CWA, a wetland or tributary is a "water of the United States ." The Rapanos decision did not reach a majority, but resulted in two 

different standards- a more expansive"significant nexus" test, and a more restrictive "relatively permanent" test.

All nine justices agreed EPA exceeded its authority in asserting jurisdiction over the Sacketts' property. The disagreement on the Court arose from what standard should be used for evaluating future cases, specifically, when the agencies could assert jurisdiction over an adjacent wetland under the CWA.

The majority opinion reviewed the history of the CWA, analyzed its text, and identified the essential issue to be how an agency can determine what waters should be considered “adjacent” to a traditional navigable body of water. The court established a two part test, holding:

In sum, the CWA extends to only wetlands that are “as a practical matter indistinguishable from waters of the United States.” This requires the party asserting jurisdiction to establish “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. (emphasis added).

The court’s interpretation of “adjacent” results in a higher standard- the fact that a wetland is neighboring a body of water covered under the CWA is not enough. It now must be connected  through a continuous surface connection.


Aleshire & Wynder LLP provides unparalleled legal representation to local communities throughout California.  Our attorneys have been loyally serving public agencies for over 35 years. 

For further information, please contact Steven O’Neill from Aleshire & Wynder, LLP. His information is below. 

* Specific loan program availability and requirements may vary. Please get in touch with your mortgage advisor for more information.
This communication is not intended to be, and does not constitute, legal advice, and no attorney-client relationship is formed by reading it. Seek the advice of an attorney before acting or relying upon any information in this communication. Facts specific to your situation or future developments may affect subjects contained herein. This communication may be considered ATTORNEY ADVERTISING in some states.