Supreme Court Defines “Waters of the United States”

In a case arising under the Clean Water Act, 33 U.S.C. §1521, et seq. (“CWA”), the Supreme Court has examined the meaning of the term “waters of the United States.”

The case, Sackett v. Environmental Protection Agency, arose from a couple who purchased a lot near Priest Lake, Idaho in 2004. To prepare the lot for the construction of their new home, they backfilled the property with rocks and dirt. The Environmental Protection Agency cited the couple and demanded the site be restored to its original state because the property was “adjacent to” and had a “nexus with” an unnamed tributary located across a 30-foot road, which fed into a non-navigable creek, which in turn fed into Priest Lake, an interstate navigable body of water. The couple sued the EPA and the District Court dismissed the suit on the basis that their property was covered by the CWA. On appeal, the Ninth Circuit affirmed.

The Court unanimously reversed and found the CWA did not extend to the property, but the Court split on the meaning of “waters of the United States.” A five-justice majority found that the CWA’s use of the term “adjacent to” should be read to mean “relatively permanent, standing or continuously flowing bodies of water…” such as streams, oceans, rivers and lakes. For wetlands to be covered by the CWA, they must be “indistinguishable” from covered waters and have a continuous surface connection with that water, making it difficult to determine where that water ends and the wetlands begin. The majority stated it could not read the word “navigable” out of the CWA and that waters cannot merely be “adjacent” or “neighboring” to be covered.

While this decision is based on the statutory provisions of the CWA, this could impact the definition of “navigable waters” in other settings, such as the general maritime law, the Jones Act, 46 U.S.C. §50101, and the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq., which also rely on the scope of “navigable waters of the United States.”

Sackett v. Environmental Protection Agency, No. 21-454 (May 25, 2023).