This case brief covers the Supreme Court narrowed Clean Water Act jurisdiction over wetlands, rejecting the "significant nexus" test and requiring a continuous surface connection to waters of the United States.
Sackett v. EPA is a landmark decision redefining the scope of federal authority under the Clean Water Act (CWA). For decades, courts and agencies wrestled with which wetlands and tributaries qualify as "waters of the United States" (WOTUS), a phrase the CWA uses to define the statute’s jurisdiction. This case resolves that uncertainty by adopting the Rapanos plurality’s "continuous surface connection" test, dramatically curtailing federal jurisdiction to wetlands that are, in practical terms, indistinguishable from covered waters like rivers, lakes, and oceans.
The ruling has sweeping implications for environmental regulation, federalism, and administrative law. By discarding the government’s long-relied-upon "significant nexus" standard, Sackett shifts much of the regulatory burden for many wetlands to the states and creates a clearer—though stricter—boundary line for landowners, developers, and regulators. It also signals the Court’s continuing insistence on textual limits in major federal environmental statutes and its reluctance to defer to agency interpretations that expand regulatory reach.
598 U.S. ___ (2023), No. 21-454 (U.S. May 25, 2023)
Michael and Chantell Sackett purchased a residential lot near Priest Lake in Idaho. The lot contained low-lying, seasonally saturated wetlands. In 2007, the Sacketts began backfilling the property with gravel to prepare for home construction. The Environmental Protection Agency (EPA) issued a unilateral administrative compliance order asserting that the property’s wetlands were protected by the Clean Water Act because they were "adjacent" to Priest Lake, a traditionally navigable water, by way of a complex hydrologic network: the wetlands on the lot were near a roadside ditch and across a road from wetlands that fed into a non-navigable tributary that ultimately drained into Priest Lake. The order required the Sacketts to restore the site or face substantial civil penalties—up to tens of thousands of dollars per day (including statutory penalties for both unpermitted discharge and violation of the order). In an earlier chapter of the litigation, the Supreme Court held in 2012 that such compliance orders are subject to immediate judicial review. On remand, the district court granted summary judgment for EPA, and the Ninth Circuit affirmed, applying the agency’s "significant nexus" test, which asked whether the wetlands significantly affected the chemical, physical, or biological integrity of downstream navigable waters. The Supreme Court granted certiorari to decide the proper standard for CWA jurisdiction over wetlands.
Does the Clean Water Act regulate wetlands that are merely near or functionally connected to covered waters under a "significant nexus" test, or does it extend only to wetlands with a continuous surface connection to waters of the United States such that the wetlands are indistinguishable from those waters?
A wetland is covered by the Clean Water Act only if: (1) the adjacent body of water constitutes "waters of the United States" in its own right (e.g., relatively permanent bodies such as streams, rivers, lakes, or seas), and (2) the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. The Court expressly rejects the "significant nexus" test as inconsistent with the statute’s text.
The wetlands on the Sacketts’ property are not covered by the Clean Water Act because they lack a continuous surface connection to waters of the United States. The Ninth Circuit’s judgment is reversed.
Text and ordinary meaning: The Court, in an opinion by Justice Alito, emphasized that the CWA regulates "navigable waters," defined as "the waters of the United States, including the territorial seas." In ordinary parlance, "waters" refers to bodies of water such as streams, oceans, rivers, and lakes. Wetlands are not "waters" unless they are so integrated with covered waters that they are, as a practical matter, indistinguishable. The Court therefore adopted the Rapanos plurality’s requirement of a continuous surface connection. Statutory structure: The majority examined Section 404 and Congress’s 1977 amendments referencing "wetlands adjacent thereto" in connection with traditionally navigable waters. While the government argued that "adjacent" means "neighboring" (covering wetlands separated from covered waters by berms, roads, or ditches), the Court concluded that Congress did not extend the CWA to all nearby wetlands. Reading "adjacent" to include separated but neighboring lands, the Court reasoned, would collapse textual limits on federal jurisdiction and untether the statute from its focus on "waters." Precedent and the demise of significant nexus: Lower courts and agencies had long applied Justice Kennedy’s Rapanos concurrence, which asked whether wetlands had a "significant nexus" to navigable waters. The Court rejected that test as imprecise, atextual, and boundless, faulting it for subjecting landowners to uncertain, ad hoc determinations with severe penalties. By adopting a bright-line surface-connection standard, the Court sought to restore predictability and confine the Act to its textual domain. Federalism and notice concerns: The majority underscored that the CWA "anticipates a partnership" with states and that narrowing federal jurisdiction does not leave wetlands unprotected; states may regulate more broadly. The Court also expressed concern that expansive, indeterminate tests expose ordinary landowners to crushing civil liability without fair notice of what conduct is prohibited. Concurrences: Justice Kavanaugh, joined by Justices Kagan, Sotomayor, and Jackson, concurred in the judgment but criticized the majority for reading "adjacent" to mean only "adjoining" (i.e., physically contiguous). In his view, for over 45 years, federal regulations and congressional acquiescence recognized that "adjacent" wetlands include those separated by natural or artificial barriers when they nevertheless are neighboring and closely connected (e.g., separated by berms or dunes). Justice Kagan, joined by Justices Sotomayor and Jackson, wrote separately to fault the majority’s narrow interpretation as undermining Congress’s choices in the CWA. Justice Thomas, joined by Justice Gorsuch, concurred to question the breadth of federal power under the Commerce Clause and to stress a historically narrower understanding of navigability.
Sackett redefines the scope of federal wetland regulation by discarding the "significant nexus" framework and embracing a bright-line "continuous surface connection" test. Practically, many wetlands previously regulated under federal law—particularly those separated from covered waters by roads, berms, levees, or dunes, or those connected only by ephemeral or subsurface flows—will fall outside federal jurisdiction unless states step in. For law students, the decision illustrates the power of statutory text in environmental law, the problem of fractured precedents (Rapanos) and their aftermath, the Court’s skepticism of agency-driven boundary-expanding interpretations, and the federalism dynamics that shape environmental regulation.
Sackett (2012) held that EPA compliance orders under the CWA are subject to immediate judicial review under the Administrative Procedure Act, allowing landowners to contest EPA assertions before facing penalties. Sackett (2023) addresses the substantive scope of the CWA, holding that only wetlands with a continuous surface connection to waters of the United States are covered and rejecting the "significant nexus" test.
To be federally regulated, a wetland must physically touch and blend into a covered water—such that, as a practical matter, it is difficult to tell where the water ends and the wetland begins. Mere proximity, subsurface hydrologic connections, or intermittent/ephemeral surface flows are not enough. The adjacent water must itself be a WOTUS (e.g., a relatively permanent river, lake, or stream).
The Court expressly rejected the significant nexus test as atextual and indeterminate. That test had asked whether wetlands, alone or in combination with similarly situated lands, significantly affect the chemical, physical, or biological integrity of downstream navigable waters. After Sackett, federal jurisdiction cannot rest on ecological or functional effects alone; there must be a continuous surface connection to a covered water.
No. Sackett limits federal jurisdiction but does not prevent states and localities from regulating more broadly. Many states already have wetland protection programs that extend beyond federal floor requirements. Additionally, other federal laws (e.g., flood control, endangered species, and coastal statutes) may still apply in particular contexts.
Sackett provides a clearer, narrower federal boundary. Landowners whose wetlands are separated from covered waters by roads or berms, or connected only intermittently, are less likely to need federal Section 404 permits, though state or local permits may still be required. Because civil penalties remain severe for unauthorized discharges into covered waters, prudent parties should seek jurisdictional determinations and consult state law before filling or dredging.
No. The Court effectively resolves the fractured precedent in Rapanos by adopting the plurality’s continuous surface connection approach and rejecting Justice Kennedy’s significant nexus test. In that sense, Sackett clarifies rather than overrules Rapanos, while narrowing the scope of federal jurisdiction that agencies had applied for years.
Sackett v. EPA is a watershed in environmental and administrative law. By anchoring CWA jurisdiction to a continuous surface connection between wetlands and covered waters, the Court prioritized statutory text and predictability over agency flexibility and ecological functionalism. The decision reallocates substantial regulatory space to states and will reshape permitting, enforcement, and compliance strategies across the country.
For law students, Sackett is essential reading on statutory interpretation, the treatment of fractured precedents, and the interplay between federal power and state authority in environmental protection. It also exemplifies how the Court evaluates agency claims of regulatory jurisdiction without deference when the statute’s text is viewed as setting clear boundaries.