ELR Citation: 53 ELR 20083
No(s). 21-454 (U.S. May 25, 2023)

The U.S. Supreme Court held that the CWA extends to only those "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right," such that they are indistinguishable from those waters, in a challenge to an EPA compliance order stating that landowners' Idaho property contained jurisdictional wetlands and directing them to remove fill and restore the property to its natural state. The landowners had argued EPA lacked jurisdiction because any wetlands on their property were not "waters of the United States." The district court granted summary judgment for EPA and the Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the property satisfied that standard. The Supreme Court held, 5-4, that the CWA extends only to wetlands that are "as a practical matter indistinguishable from waters of the United States," which requires establishing that the adjacent water body constitutes "water(s) of the United States" and that the wetland has a continuous surface connection with that water body such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." It found the wetlands on the landowners' property were "distinguishable from any possibly covered waters," reversed the appellate ruling, and remanded for further proceedings. Alito, J., delivered the opinion of the Court, in which Roberts, C.J., and Thomas, Gorsuch, and Barrett, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment, in which Sotomayor and Jackson, JJ., joined. Kavanaugh, J., filed an opinion concurring in the judgment, in which Sotomayor, Kagan, and Jackson, JJ., joined.