On May 23, 2023, the U.S. Supreme Court released its ruling in Sackett v. EPA, under which the U.S. Supreme Court unanimously ruled to eliminate the “significant nexus test” that serves as an independent basis under the current WOTUS rule for EPA or the Corps to claim CWA jurisdiction over otherwise isolated wetlands, intermittent, and ephemeral waterbodies. Although the U.S. Supreme Court under Sackett also issued a 5-4 ruling over what the replacement test should be, it is telling that no justice attempted to defend significant nexus as an appropriate test.
While the question before the U.S. Supreme Court under Sackett was whether a specific isolated wetland could be deemed jurisdictional by EPA and Corps by relying upon of the significant nexus test, and not the legality of the recently finalized WOTUS rule, nevertheless, the U.S. Supreme Court’s ruling under Sackett compels EPA and the Corps to issue interim regulatory guidance, and likely undertake yet another WOTUS rulemaking. The Corps issued a temporary directive to all Corps districts to halt processing approved jurisdictional determinations (AJDs) under the recently finalized WOTUS rule, until subsequent guidance on the Sackett ruling is provided.
Under Sackett, the majority’s 5-4 ruling also clarified that CWA jurisdictional “waters” encompass only relatively permanent, standing or continuously flowing bodies of water that maintain a surface water connection to a TNW. Thus, under the Sackett ruling, all ephemeral features that possess water only after rainfall events and groundwater cannot be the basis for the EPA or the Corps to determine whether a waterbody is jurisdictional under the CWA.
Importantly, under the Sackett ruling, the Court did not clarify what it means for a wetland or waterbody to have a relatively permanent surface water connection. The Supreme Court’s majority signaled they agreed with the late Supreme Court Justice Scalia’s reasoning under the Rapanos decision of jurisdictional waters needing to have and maintain a relatively permanent surface water connection, the Court did not establish any bright line tests for how far away or for how long that relatively surface water could be. The agencies chose not to provide clarification or guidance on this issue, further muddying the waters and adding to regulatory uncertainty.