Master The Supreme Court narrowed Clean Water Act jurisdiction, holding that only wetlands with a continuous surface connection to traditional navigable waters are covered. with this comprehensive case brief.
Sackett v. EPA is a landmark environmental law decision that sharply narrows the scope of federal jurisdiction under the Clean Water Act (CWA). The Court rejected the long‑used "significant nexus" test for determining whether wetlands are part of the “waters of the United States” (WOTUS), and adopted a much stricter standard drawn from the Rapanos plurality. The decision limits CWA coverage to wetlands that are indistinguishable from covered waters because of a continuous surface connection.
The ruling profoundly affects federal-state balance in water and land-use regulation, curtails the reach of federal permitting obligations under Section 404, and creates substantial practical consequences for developers, landowners, and agencies. For law students, Sackett is essential for understanding statutory interpretation, federalism canons, the Court’s skepticism of expansive agency jurisdiction, and the evolution of WOTUS jurisprudence after SWANCC and Rapanos.
Sackett v. EPA, 598 U.S. ___ (U.S. 2023)
Michael and Chantell Sackett purchased a 0.63‑acre residential lot in a platted subdivision near Priest Lake, Idaho. The lot contained soggy ground and seasonal wetlands but was separated from Priest Lake by a road and other developed parcels. The Sacketts began placing gravel and fill to prepare for building a home. The Environmental Protection Agency issued a compliance order asserting the lot contained jurisdictional wetlands under the Clean Water Act because they were “adjacent” to Priest Lake and to tributaries leading to the lake via roadside ditches and a creek. The order directed the Sacketts to restore the site and warned of substantial civil penalties for noncompliance. After earlier litigation established their right to immediate judicial review of the order (Sackett v. EPA (2012)), the case returned to the lower courts, which applied Justice Kennedy’s “significant nexus” test from Rapanos to uphold EPA’s jurisdiction on the theory that the wetlands on the lot, alone or in combination with nearby wetlands, significantly affected Priest Lake. The Supreme Court granted certiorari to determine the proper test for jurisdiction over wetlands under the CWA.
What is the proper test for determining whether wetlands are covered by the Clean Water Act as “waters of the United States,” and do the Sacketts’ wetlands fall within the Act’s jurisdiction?
The Clean Water Act extends to: (1) traditional navigable waters and other relatively permanent bodies of water connected to them; and (2) only those wetlands that are “adjacent” to such waters in the narrow sense of having a “continuous surface connection” that makes the wetland and water “indistinguishable,” such that it is difficult to determine where the water ends and the wetland begins. The “significant nexus” test is rejected.
Wetlands are covered by the Clean Water Act only if they have a continuous surface connection to traditional navigable waters (or to relatively permanent waters connected to them), rendering the wetlands indistinguishable from those waters. The Sacketts’ property lacks such a connection and therefore is not subject to CWA jurisdiction.
Text and ordinary meaning: The Court emphasized that the Act regulates “navigable waters,” defined as “the waters of the United States.” The ordinary meaning of “waters” refers to discrete bodies such as streams, rivers, lakes, and oceans—not all wet or saturated lands. Because “waters” denotes such bodies, wetlands are included only when they are so integrated with covered waters that they are, in practical terms, part of those waters. Structure and statutory context: Section 404(g)(1) refers to “adjacent” wetlands, but the Court read adjacency in context to require a tight physical relationship—i.e., a continuous surface connection—so that adjacency means essentially “adjoining.” This interpretation harmonizes “waters” with the inclusion of some wetlands and avoids transforming much of the landscape into federally regulated waters, preserving the States’ primary authority over land and water resources. Precedent: The Court rejected Justice Kennedy’s “significant nexus” test from his concurrence in Rapanos as inconsistent with the statutory text and as too indeterminate to provide fair notice in a regime with severe civil and criminal penalties. It instead adopted the Rapanos plurality’s approach, which limited WOTUS to relatively permanent waters and wetlands with a continuous surface connection to such waters. Federalism and fair notice: Reading WOTUS to reach wetlands lacking a surface connection would intrude on traditional state powers and create vagueness problems by turning on complex ecological judgments. The continuous-surface-connection standard offers clearer, administrable lines for landowners and regulators. Application: The wetlands on the Sacketts’ lot are separated from Priest Lake by a road and intervening properties and lack a continuous surface connection to the lake or a relatively permanent tributary. Connectivity through subsurface flow, intermittent channels, or man‑made ditches is insufficient. Accordingly, the EPA lacked jurisdiction.
Sackett substantially narrows federal wetland jurisdiction, discarding the “significant nexus” test and adopting a stricter, surface‑connection requirement. It reshapes permitting under CWA § 404, likely reducing the number of projects requiring federal dredge‑and‑fill permits and shifting regulatory burdens to states and localities. Doctrinally, the case highlights the Court’s textualist approach, sensitivity to federalism concerns, and insistence on clear lines in statutes with criminal penalties. For law students, it is a crucial companion to SWANCC and Rapanos in tracing the evolution of WOTUS and the Court’s broader skepticism toward expansive agency interpretations absent clear congressional authorization.
Sackett rejects the “significant nexus” test (which asked whether wetlands significantly affect downstream navigable waters) and adopts a two‑part standard: the wetland must be adjacent to a relatively permanent body of water that is itself a WOTUS, and there must be a continuous surface connection making the wetland practically indistinguishable from that water.
Connectivity via man‑made ditches, intermittent or ephemeral channels, or subsurface hydrological connections does not satisfy the continuous surface connection requirement. The Court focused on visible, continuous surface water that directly links the wetland to a covered water.
Sackett effectively elevates the Rapanos plurality approach to controlling law, limiting WOTUS to relatively permanent waters and adjacent wetlands with a continuous surface connection. It rejects Justice Kennedy’s Rapanos concurrence (“significant nexus”) and builds on SWANCC’s caution against overbroad federal assertions of jurisdiction.
Fewer wetlands will fall under federal jurisdiction, so fewer projects will require federal § 404 permits. However, state and local wetland protections may still apply. Landowners must still carefully assess potential WOTUS connections; when in doubt, seeking a jurisdictional determination remains prudent to avoid enforcement risk.
No. The majority grounded its decision in statutory text, structure, and precedent rather than Chevron deference or the major questions doctrine. Concurring opinions discussed separation‑of‑powers and federalism themes, but the holding rests on textual interpretation of “waters.”
Justice Kavanaugh (joined by Justices Kagan, Sotomayor, and Jackson) agreed the Sacketts should prevail but argued that “adjacent” in § 404 includes “neighboring” wetlands even if separated by barriers like berms or roads; he criticized the majority for reading “adjacent” to mean only “adjoining.” Other concurrences addressed historical and constitutional considerations.
Sackett v. EPA redefines the outer limits of federal water regulation by restricting the Clean Water Act to traditional navigable waters, their relatively permanent tributaries, and only those wetlands with a continuous surface connection to those waters. By rejecting the significant nexus test, the Court sought clearer and more administrable lines in a statute with serious penalties and profound federalism implications.
Going forward, federal wetland jurisdiction is narrower, placing more weight on visible hydrologic connections and less on ecological or functional impacts. For practitioners and students, Sackett is a touchstone for reading environmental statutes through a textualist lens and for anticipating how the Court may handle agency assertions of power in areas of traditional state authority.