By: Meghan Dunnagan, Esq., Melanie De Marco, Esq. and Tera Cafro (1L)
June 9, 2023
In a controversial move, the United States Supreme Court recently issued its opinion in Sackett v. EPA (2023) 598 U.S. ____. Sackett is the latest in a string ¬of cases about “Waters of the United States” (“WOTUS”) as defined by the federal Clean Water Act (“CWA”). While this may seem to be a dry and technical topic, the definition of WOTUS is important to anyone looking to develop land because it determines the extent of the U.S. Army Corps of Engineers’ (“Corps”) and the U.S. Environmental Protection Agency’s (“EPA”) regulatory authority under Section 404 of the CWA.
In 2004, Mr. and Mrs. Sackett purchased a small residential lot near Priest Lake in Bonner County, Idaho and began backfilling the lot with dirt to prepare for building a new home. A few months later, the EPA sent the Sacketts a compliance order threatening penalties of over $40,000 per day if they did not restore the property to its former condition, asserting their property contained protected wetlands. According to EPA, the wetlands on the Sackett’s property were regulated WOTUS because they were “adjacent to” an “unnamed tributary” that eventually fed into the navigable Priest Lake. (The tributary was on the other side of a 30-foot road from the Sacketts’ property.) Facing such daunting daily penalties, the Sacketts challenged EPA’s position.
The CWA prohibits discharge of any pollutant into “navigable waters,” aka “waters of the United States.” Section 404 allows the Corps to issue permits for discharges of dredged or fill material into WOTUS, but obtaining such a permit can be a long and costly process. Since passage of the CWA in 1972, the Corps, EPA, and to a large extent the Supreme Court, have grappled with various definitions of WOTUS, particularly with respect to “wetland” areas that are not within an obvious waterway.
To assert jurisdiction over the wetlands on the Sacketts’ property, EPA relied on the WOTUS definition derived from the “significant nexus test” found in Justice Kennedy’s concurrence in Rapanos v. United States (2006) 547 U.S. 715. “To establish a significant nexus,” the Court observed, “the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that [EPA] regarded as ‘similarly situated’” and concluded they “‘significantly affect’ the ecology of Priest Lake.” Based on this analysis, EPA claimed the Sacketts had illegally impacted WOTUS.
Nearly 20 years after the Sacketts purchased their Idaho property, the Supreme Court ruled in favor of the Sackett family. The Court held that the wetlands on their property were not WOTUS because they lacked a “continuous surface connection” with a traditional navigable water. They also determined that “the non-navigable so-called ‘tributary’ (really a roadside ditch) across the street from the Sacketts’ property is not a [WOTUS].” The “continuous surface connection” test that emerged is much more forgiving to landowners and narrows the meaning of an “adjacent wetland” to one that is so contiguous to a traditional navigable water that it is “difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.”
The Supreme Court was looking for a bright-line test to provide clarity for landowners and regulators. While this opinion may provide clearer guidance on the federal side, states can still regulate areas within their own jurisdiction. In California, for example, the State Water Resources Control Board regulates wetlands that are considered waters of the State. It will take some time for federal and state agencies to adjust to and begin implementing this new wetland definition. As of this writing, EPA’s website states that “[t]he agencies are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett. The agencies continue to review these decisions to determine next steps.” EPA Waters of the US Rulemaking Page.
Sackett v. EPA is undoubtedly a landmark decision for landowners and is considered a huge win for property rights. Landowners will have more certainty regarding their autonomy in developing properties with wet areas onsite. Project proponents with pending permit applications may experience a slight hiccup while EPA and the Corps develop guidance to implement this latest definition. In California and other parts of the west, state governments may take up the regulatory slack and require permits for wet areas that are no longer covered under federal law. As always, evaluation of each project will be on a case-by-case basis, and project proponents should seek individual advice on related biological, hydrological, and legal issues.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
