Commentary://Margaret M. Witherup//June 5, 2023
//Margaret M. Witherup
//June 5, 2023
On May 25, 2023, the U.S. Supreme Court issued a long-awaited decision that ends decades of debate over the extent to which the federal government can regulate wetlands and other waters as waters of the United States. In the case of Sackett v. EPA, all nine justices agreed in the outcome of the decision and concluded that land owned by Mike and Chantell Sackett near Priest Lake in Idaho did not include wetlands subject to federal jurisdiction and, therefore, did not require a federal wetlands permit to build a home on their property.
Although the justices differed in their legal reasoning, all agreed that the U.S. Environmental Protection agency and U.S. Army Corps of Engineers had gone too far in their regulation of wetlands that are not adjacent to traditional navigable waters.
Federal jurisdiction over wetlands is derived from the Clean Water Act, enacted in 1972. Under the Clean Water Act, the federal government has jurisdiction over “navigable waters,” which are defined as “waters of the United States.”
In 1977, Congress amended the Clean Water Act to make clear that “waters of the United States” includes “wetlands adjacent” to navigable waters. Determining exactly what constitutes an “adjacent” wetland subject to jurisdiction as “waters of the United States,” however, has been the subject of significant debate and much litigation over the past 40 years.
In 2006, the Supreme Court considered whether wetlands near a ditch that eventually drained into navigable waters 11 miles away was subject to federal jurisdiction. That case, Rapanos v. United States, resulted in three separate decisions, none of which commanded a majority of the court.
Four justices concluded that federal jurisdiction was limited to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a close physical connection to those waters; four justices would have deferred to the agencies’ broader definition; and one justice opined that a wetland could be subject to federal jurisdiction if it had a “significant nexus” to a traditional navigable water.
Between 2008 and 2023, EPA and the Corps promulgated several regulations and issued guidance attempting to define what constitutes an “adjacent” wetland subject to federal jurisdiction as a water of the United States. The “significant nexus” test received a lot of traction and was expressly incorporated into EPA’s and the Corps’ most recent iteration of the WOTUS Rule, effective March 2023.
These rules were challenged in multiple lawsuits and many were enjoined by courts in different parts of the country, resulting in a patchwork of applicability and a flip-flopping regulatory framework. (For a summary of the litigation regarding the WOTUS Rule, see Maggie Witherup, The Clean Water Rule Roller Coaster (The Daily Record, Sept. 4, 2018).
Needless to say, it has been very challenging for property owners and practitioners to know whether a particular wetland constitutes a water of the United States subject to federal jurisdiction.
The Sackett Case
In 2004, Michael and Chantell Sackett purchased a small lot approximately 300 feet from Priest Lake in rural Idaho. They began backfilling their property with dirt and rocks in preparation for building a home.
Contending that the Sacketts had illegally dumped soil and gravel into waters of the United States without a permit, EPA ordered the Sacketts to restore the site. EPA threatened the Sacketts with penalties of $40,000 per day if they did not comply. The Sacketts filed suit challenging EPA’s decision.
After years of legal proceedings, including a previous trip to the Supreme Court on a procedural issue, the Supreme Court finally addressed the merits of the case. The justices all agreed that the Sacketts’ land did not contain wetlands subject to federal jurisdiction. The majority opinion, authored by Justice Samuel Alito, held that for wetlands to constitute waters of the United States, it must be a relatively permanent body of water connected to traditional interstate navigable waters and have a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.
The majority rejected EPA’s and the Corps’ reliance on the “significant nexus” test as inconsistent with the text of the Clean Water Act as well as unreasonably vague.
Justice Brett Kavanaugh, joined by liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Jackson, concurred in the judgment that the Sacketts’ property did not contain wetlands subject to federal jurisdiction; however, Kavanaugh argued that the majority had interpreted “adjacent” wetlands too narrowly. According to Kavanaugh, the term “adjacent” does not require a continuous surface connection to a covered water, but should also cover wetlands that are separated from a navigable water by a man made dike or barrier, natural river berm, beach dune, or the like.
The court’s decision will reduce the number of wetlands subject to federal jurisdiction under the Clean Water Act. The court’s decision will also provide property owners with clarity and more flexibility over the use of their property.
But this does not necessarily mean that the wetlands will be wholly unregulated or that the nation’s overall water quality will automatically decline. States can and do regulate wetlands within their territories and are not limited to the “navigable waters” definition in the federal Clean Water Act.
Maryland, for example, has a robust wetlands permitting program that protects both tidally influenced and nontidal wetlands and a separate Critical Areas Program that protects all land within 1,000 feet of tidal waters and tidal wetlands, and waters of the Chesapeake Bay and Atlantic Coastal Bays.
In response to the Sackett decision, Maryland and other states will likely step in and regulate wetlands formerly regulated by EPA and the Corps. For now at least, the roller coaster ride of flip-flopping federal jurisdiction over wetlands is over.
Margaret “Maggie” Witherup is an environmental and energy attorney and a principal at Witherup Allen Law LLC. She can be reached at [email protected] or 410-424-5300.