In a highly anticipated opinion, the United States Supreme Court narrowed the scope of waters and wetlands considered to be "waters of the United States" ("WOTUS") and, therefore, subject to jurisdiction under the Clean Water Act. In Sackett v. EPA, the Court held that WOTUS is limited to “geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes and to adjacent wetlands that are indistinguishable from those bodies of water due to a continuous surface connection." 598 U.S. ____(2023) (citing Rapanos v. United States, 547 U. S. 715, 755, 742, 739 (plurality opinion)).
The opinion's definition appears to adopt the "relatively permanent" standard for defining WOTUS, championed by Justice Scalia in his plurality opinion in Rapanos. That standard requires a permanent hydrologic connection to a WOTUS, and a continuous surface connection for wetlands. In contrast, Justice Kennedy's "significant nexus" standard, which has been the Rapanos standard implemented by USACE and USEPA, considered a wetland a WOTUS if it significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" Rapanos at 780.
The holding will have little impact on most large lakes and rivers, or perennial streams (flow year round), but it will be most impactful for determining which wetlands are considered WOTUS. Justice Alito specifically explained that a wetland would only be considered a WOTUS if there was a relatively permanent surface connection with a WOTUS. This is a departure from the current standard. Under the significant nexus standard (and Biden's 2023 WOTUS Rule), an adjacent wetland did not require a relatively permanent surface connection. Therefore, wetlands that have been determined to have a significant nexus with a WOTUS (for example through a seasonal or subsurface connection) would no longer be considered WOTUS and would not be protected by the federal Clean Water Act.
While it was a unanimous decision that the wetlands at issue in the case should not be considered WOTUS, there was a 5-4 split over whether an adjacent wetland requires a continuous surface connection. Four justices joined Justice Alito's opinion that an adjacent wetland does require a continuous surface connection. The other four justices disagree with that statement, and primarily argue that "adjacent" does not exclusively mean "adjoining."
Notably, the Supreme Court provided little guidance on how to apply the case holding to ephemeral and intermittent streams. The case holding, and much of the specific analysis within the opinion, focuses exclusively on distinguishing an adjacent wetland from a non-adjacent wetland. It will remain to be seen whether the case holding is limited to applications in determining wetland jurisdiction, or if it also impacts jurisdictional determinations of streams. This could play out in the pending litigation over President Biden's 2023 WOTUS Rule.
Finally, it is important to remember that this opinion only impacts the jurisdictional limits of federal waters; it does not restrict the limits of state jurisdiction over waters. In fact, because Ohio already regulates non-adjacent (isolated) wetlands under ORC 6111, the scope of state-regulated wetlands will expand to cover more wetlands as a result of this ruling.
Vorys will continue to monitor how this case impacts state and federal jurisdiction of wetlands and other waters. If you have any questions, please do not hesitate to reach out to Nat Morse, Kristin Watt, or your Vorys lawyer.