Sackett v. EPA and the Wetlands the Clean Water Act No Longer Covers

The lot is small, a little under an acre, in a subdivision of vacation homes a few hundred feet from Priest Lake in the Idaho Panhandle, a long, clear, cold lake ringed by forest near the Canadian border. Michael and Chantell Sackett bought it in the mid-2000s to build a house. In 2007 they began spreading gravel and sand to prepare the ground. Not long after, officials from the Environmental Protection Agency arrived and told them to stop. The agency said the property contained wetlands connected to the lake through a ditch and a creek across the road, that filling them without a federal permit violated the Clean Water Act, and that the couple faced fines that could run to tens of thousands of dollars a day if they did not restore the land. The Sacketts thought that was absurd: they could see their neighbours' houses on either side, and there was no stream or pond on their lot. They fought the order for more than fifteen years, all the way to the Supreme Court, twice. The second time, in May 2023, they did more than win. They changed the reach of one of the country's most important environmental laws.

In short: In Sackett v. EPA (2023), the Supreme Court held that the Clean Water Act covers only wetlands with a continuous surface connection to rivers, lakes and other larger waters, making them practically indistinguishable from those waters. All nine justices agreed the Sacketts should win, but only five adopted that narrow test, which removes federal protection from a large share of the nation's wetlands and leaves their fate mostly to the states.

The question the law never answered clearly

The Clean Water Act of 1972 prohibits discharging pollutants, including dredged soil and fill, into "navigable waters" without a permit. It then defines navigable waters as "the waters of the United States." That second phrase has generated half a century of argument, because the act never says exactly which waters it includes.

Everyone agrees it covers big rivers, lakes and coastal waters that boats can travel. The fights are about everything smaller: creeks that run only part of the year, ditches, ponds, and especially wetlands, the marshes, swamps, bogs and soggy fields that sit between dry land and open water. Wetlands matter for reasons that are easy to underestimate. They store floodwater and release it slowly, filter pollution before it reaches rivers and drinking water, recharge groundwater and provide habitat for a large share of the country's fish and birds. They also stand in the way of houses, farms, mines and roads, which is why landowners and developers have always cared intensely about whether a federal permit is required to fill them.

For decades the EPA and the Army Corps of Engineers, which jointly run the permit program, interpreted waters of the United States broadly, on the theory that pollution and fill in small waters flow downstream into big ones. The Supreme Court pushed back in stages.

The road from Rapanos to Sackett

In 2001 the Court held that the agencies could not regulate isolated ponds simply because migratory birds used them. In 2006, in Rapanos v. United States, it split badly. Four justices, in an opinion by Justice Antonin Scalia, said the law covered only relatively permanent bodies of water and wetlands with a continuous surface connection to them. Justice Anthony Kennedy, writing only for himself, proposed a different test: a wetland was covered if it had a significant nexus to traditional navigable waters, meaning it significantly affected their chemical, physical or biological integrity. Because neither opinion had five votes, lower courts and the agencies spent the next seventeen years arguing about which test to use, and mostly used Kennedy's.

That is the test that caught the Sacketts. The agencies concluded that their lot's wetlands, together with similar wetlands nearby, significantly affected Priest Lake.

Their case had already been to the Supreme Court once. In 2012 the Court ruled unanimously, in an opinion by Scalia, that the couple could challenge the EPA's compliance order in court right away rather than waiting to be sued or applying for a permit first. That was a meaningful procedural win for landowners. It sent the case back to the lower courts, where the Sacketts lost on the main question: in 2021 the federal appeals court in San Francisco upheld the EPA's position under Kennedy's test. The Supreme Court agreed to hear the case again.

What the Court decided in 2023

On May 25, 2023, the Court ruled for the Sacketts. All nine justices agreed that their lot was not covered. They disagreed sharply about why, and the why is what matters.

Justice Samuel Alito, writing for five justices, adopted the approach of the Rapanos plurality and made it the law. The act covers wetlands only when they have a continuous surface connection to a body of water that is itself a water of the United States, such that it is difficult to tell where the water ends and the wetland begins. Kennedy's significant nexus test was rejected entirely. The majority reasoned that the word "waters" in the statute refers to streams, oceans, rivers and lakes in ordinary usage, and that Congress would have spoken more clearly if it meant to give federal agencies authority over vast stretches of land that are merely wet some of the time. It also emphasized that regulating land use is traditionally a state responsibility and that the act's heavy penalties call for clear lines.

Justice Brett Kavanaugh, joined by the three justices appointed by Democratic presidents, agreed the Sacketts should win but objected to the majority's test. He pointed out that the statute itself, as amended in 1977, refers to wetlands adjacent to covered waters, and that adjacent ordinarily includes things that are near but not touching. Under the majority's rule, he warned, wetlands separated from a river by a natural berm, a sand dune or a man-made levee could lose protection even though they plainly affect the river. Many of the country's most important wetlands, including those along the Mississippi, sit behind such barriers.

Justice Elena Kagan, joined by the two other Democratic appointees, wrote separately to make a broader point: that the Court was rewriting a statute to narrow a law Congress had written broadly, and that this fit a pattern of the Court appointing itself the national decision-maker on environmental policy.

The case for the ruling

The Sacketts' supporters, and the majority, had arguments that deserve a fair hearing.

Landowners had lived for decades without knowing for sure whether a damp corner of their property was federally regulated. Kennedy's test required case-by-case scientific analysis that ordinary people could not do for themselves, and getting it wrong could bring crushing penalties. A homeowner should be able to tell, by looking, whether federal law applies. The Sacketts' story, a couple fighting the federal government for well over a decade over a gravel pad for a house, made that unfairness vivid.

There is also a democratic argument. If Congress wants to protect every wetland that affects downstream water, it can say so in a statute. Leaving the boundary to agencies, which reinterpret it with each change of administration, has produced exactly the whiplash the country experienced, with rules rewritten under Obama, Trump, Biden and Trump again.

Those are real concerns. The answer, in my view, is that the majority solved the uncertainty problem by choosing the narrowest possible line rather than a clear and faithful one. Water does not stop at the edge of a visible surface connection. Pollution and fill in a wetland behind a levee, or in a marsh fed by groundwater, can still reach the river and the people who drink from it. A clear rule that leaves out much of what the law was written to protect is not a neutral fix. And the 1977 amendment that refers to adjacent wetlands is a hard text for the majority to explain away; that was the point of Kavanaugh's opinion, and he is no one's idea of a liberal justice.

What changed on the ground

After the decision, the EPA and the Army Corps issued a revised rule in August 2023 bringing their definition into line with the ruling. Wetlands without a continuous surface connection to covered waters no longer need a federal permit to be filled. Neither do many streams that flow only after rain, which the Rapanos plurality's approach already treated with suspicion and which are especially common in the arid West.

Nobody can count precisely how many wetlands lost protection, because the country has never mapped every one, but analysts across the spectrum agree the share is large. Wetlands in the prairie pothole region of the northern plains, isolated wetlands in the Southeast and many seasonal streams in the Southwest are among the most affected. In 2025 the EPA, under the current administration, moved to rewrite the definition again, aiming for a reading of the decision that would cover even less.

The effect now depends heavily on where you live. Some states, including California and New York, have their own laws protecting wetlands beyond the federal floor. Colorado passed a law in 2024 to create its own permit program to fill the gap. Many other states have no such law, and some have laws that bar state regulators from being stricter than federal rules. In those places, a wetland that lost federal protection may now have none at all.

Who was actually burdened before, and who is now

One piece of the debate gets lost in the courtroom drama: the Sacketts were not typical. Most people who need a federal wetlands permit are not homeowners with a single lot. They are developers, mining companies, highway departments, pipeline builders and large agricultural operations. Ordinary farming was already largely exempt; the law has long carved out normal ploughing, planting and the maintenance of farm ponds and ditches from the permit requirement. Many routine projects were covered by general permits that took little paperwork.

That matters for weighing the ruling. The sympathetic story was a couple and their dream house. The broader beneficiaries are the businesses that fill wetlands at scale, which no longer need to show federal regulators that they have avoided and minimized damage, or to pay to restore wetlands elsewhere to make up for what they destroy. That compensation system, known as mitigation, had grown into a real industry that built and protected wetlands across the country. Less federal jurisdiction means less of it.

None of this means every permit decision before 2023 was wise or every delay justified. Progressives who want to build clean energy, transmission lines and housing have their own complaints about slow federal reviews, and some of those complaints are fair. The better answer to a slow permit system is a faster, clearer one with enough staff to run it, not one that simply stops looking at most of the water.

This is general information about how the law works, not legal advice. Anyone planning work on wet ground should check with the Army Corps district office and their state environmental agency before starting.

Why it is an environmental justice question

It is tempting to treat Sackett as a dispute between landowners and regulators about scenery and ducks. It is more than that.

Wetlands are one of the cheapest flood-control systems there is. When they are filled, floodwater that would have soaked into a marsh goes somewhere else, often into the lower-lying neighbourhoods where land was cheapest and where working families, and frequently Black and Latino families, live. Wetlands also filter fertilizer, sediment and chemicals before they reach drinking water sources; when they are lost, water utilities pay more to treat what arrives, and they pass the cost on to customers.

The people with the least ability to move away from a flood zone, to buy bottled water or to hire a lawyer to fight a neighbouring development are the ones most affected when protection disappears. A ruling about a gravel pad in Idaho reaches them too.

What you can do

The Court has had its say. Congress, state legislatures and the agencies still have theirs.

1. Follow the Court and the agencies. The court tracker lists this term's Supreme Court opinions with the Court's own summaries, the emergency docket and Senate votes on judges, so you can watch how environmental cases are being decided.
2. Comment on the next definition. Any new federal rule defining waters of the United States must go through public comment. Check the open comment periods, which list rules by issue with the soonest-closing first and explain how to write a comment the agencies must consider.
3. Ask Congress to restore the law's reach. Congress can amend the Clean Water Act to say plainly which wetlands it covers. Reach your members through the representatives page, which also shows how they have voted recently.
4. Push your state to fill the gap. Ask your state legislators whether your state protects wetlands that federal law no longer covers, and what it would take to do so. Environmental and conservation groups working on state law are listed in the organizations directory.
5. Keep up with the courts. The courts topic page collects reporting on rulings like Sackett and what they mean in practice.

The Sacketts wanted to build a house near a lake they loved. The ruling that bears their name will decide, for years to come, how well that lake and thousands of other waters are protected. That is too important to leave to nine people in Washington alone.