The U.S. Supreme Court overturned a lower court decision that expanded the EPA’s authority to broadly define wetlands for federal regulation under the Clean Water Act (CWA).

Cooper david
Managing Editor / Progressive Cattle

The decision released May 25 and written by Justice Samuel Alito halted the agency’s authority under the CWA to regulate “navigable waters of the U.S.” in a fashion excessively and with penalties on all wetlands. The court asserted the "waters" definition to the regular scope of geographic and navigable bodies of water and those indistinguishable from them due to continuous surface connection.

The case, Sackett v. EPA, had been awaited by water use groups, including those in agricultural and ranching lobbies, to clarify administrative use of the CWA to tightly define “waters of the U.S.” in recent months.

The decision reads officially as a 9-0 majority, with three other justices writing concurring opinions. Justices Elaine Kagan’s and Brett Kavanaugh’s opinions assert that the outcome will undermine EPA’s authority under Congress to regulate waterways effectively, but the entire court asserted that the Sackett family should not have been penalized under the broader authority.

Alito’s opinion takes a historical view of the terminology applied to regulate navigable waters and efforts used by the EPA and Congress to expand its definition. Alito wrote the CWA’s use of the term “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers and lakes.’”


NCBA's chief counsel for government affairs, Mary-Thomas Hart, said the decision to strike down the "significant nexus test," which has been a "burr under the saddle" for landowners, was especially positive news.

"Cattle producers should be very excited and certainly breathing a sigh of relief," Hart said on an NCBA podcast. "The holding against the significant nexus test is certainly at a minimum going to require the Biden administration to pull their 2023 definition back for some serious reconsideration and revisions."

The Sackett case is now remanded back to the U.S. 9th Circuit Court of Appeals.

To read the full decision, click here.