Sackett v. EPA: When “Adjacent” Means “Contiguous” and Property Rights Eclipse Clean Water Act Protections

Jo Vonderhorst

In Sackett v. EPA, the United States Supreme Court sought to delineate the bounds of federal authority under the Clean Water Act (“CWA” or “Act”) by clarifying the scope of the jurisdictional term “waters of the United States” (“WOTUS”) and by identifying the proper test for determining when wetlands constitute WOTUS. Justice Alito, writing for the Court, held that WOTUS encompass only relatively permanent bodies of water, such as rivers and lakes, and wetlands with a continuous surface connection to such waters. Adopting the continuous surface connection test announced in Justice Scalia’s plurality opinion in Rapanos v. United States, the Court endorsed the misinterpretation of precedent upon which that opinion rested and flouted the unambiguous intent of Congress by misreading the language of the CWA. In so doing, the Court imposed on the agencies responsible for enforcing the Act its policy judgment that the breadth of congressionally sanctioned regulatory power was too great and eviscerated federal protections for wetlands adjacent to WOTUS without regard for the consequences.