On May 25, 2023, the Supreme Court of the United States (SCOTUS) released its long-awaited ruling in the Sackett v. EPA case. The case-specific judgment, in favor of the Sacketts, was unanimous. The opinion was not. The primary take away from the Court’s majority opinion is “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.” What this means is that a SCOTUS majority thinks that only wetland features with a surface connection to other WOTUS features are jurisdictional.
Justice Kavanaugh’s minority opinion, with justices Sotomayor, Kagan and Jackson concurring, stated: “I respectfully disagree, however, with the Court’s new “continuous surface connection” test. In my view, the Court’s new test is overly narrow and inconsistent with the Act’s coverage of adjacent wetlands.” Kavanaugh’s opinion did, however, agree that the “significant nexus” test should no longer be used to determine a wetland’s jurisdictional status.
Additionally, Justice Thomas wrote a separate, concurring opinion, with Gorsuch’s concurrence and Justice Kagan wrote a separate minority opinion, with concurrence from Sotomayor and Jackson.
What this monumental SCOTUS decision and differing opinions means to the regulated community is yet to be known. As with the other recent and numerous changes to the interpretation of the WOTUS definition, the public eagerly awaits EPA and US Army Corps of Engineers guidance. Undoubtedly though, once it begins to be interpreted and implemented on the ground, new litigation will not be far behind.
Having been directly involved in the WOTUS/404 regulated community for over thirty years, I think I speak for many by saying: this circuitously contradictory interpretation must end!
How does the SCOTUS’ Sackett decision effect your project? Its hard to tell. SEI is currently reviewing recent and active projects and will reach out to our clients in the coming days, as appropriate.
If you have questions, please email Ward Marotti email@example.com
A concise summary of the case and ruling can be found here:
The actual SCOTUS decision is here: