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  • Writer's pictureJ.D. Solomon

Will The Recent Sackett v. EPA Wetlands Ruling Hurt Landowners?


The issue of adjacent wetlands is the subject of the Sackett ruling by the US Supreme Court.  JS Solomon Inc regularly works with landowners and regulatory agencies on wetlands and water issues.
The issue of adjacent wetlands is the subject of the Sackett ruling by the US Supreme Court

The May 25, 2023, Supreme Court of the United States (SCOTUS) ruling in Sackett v. Environmental Protection Agency adds clarity for landowners as to what constitutes isolated wetlands. While the ruling limits the over-reach by EPA related to adjacent wetlands, SCOTUS only addresses the power of the federal agency under the Clean Water Act. That means the battle in the short-term shifts firmly to the states and to subsequent legislation at the federal level. Landowners will get the benefit of common-sense simplicity, but, as with all things wetlands, the complexities and uncertainties will continue.


The Issue

Waters of the United States (WOTUS) are based on the federal Clean Water Act (CWA). The goal of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation's water by eliminating pollution and propagating fish and wildlife. If restoring and maintaining the integrity of water sounds complex, that is because it is.

Most non-experts associate federal jurisdiction of surface water to the navigable waters and bordering perennial rivers, streams, estuaries, or the ocean. And this was the nature of regulatory enforcement for many years ago.


Over the past decade, EPA has increasingly interpreted (and enforced) the cases that federally-regulated wetlands under CWA also include bodies that include seasonal connection or no connection at all to rivers, streams, estuaries, or oceans. There are some good technical cases that the soil and plant life in these “non-adjacent” (aka, isolated or pocket) wetlands meet the administrative criteria developed for classification.

For more information on wetlands, see our previous articles WOTUS and Why It Matters and Wetland Regulation by Press Release.


Background

The EPA classified the wetlands on the Sack­etts’ lot as “waters of the United States” because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The Sacketts sued, alleging that their property was not “waters of the United States.” The District Court entered summary judgment for the EPA. The Ninth Circuit affirmed, holding that the CWA covers wetlands with an ecologically significant nexus to traditional naviga­ble waters and that the Sacketts’ wetlands satisfy that standard. The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day.


SCOTUS Core Ruling

The Clean Water Act’s use of “waters” refers only to “geo­graphic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous sur­face connection. To assert jurisdiction over an adjacent wetland un­der the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface con­nection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”


SCOTUS Additional Notes

The uncertain meaning of “the waters of the United States” has been a persistent problem, sparking decades of agency action and litigation.


EPA Over-Reached with “Adjacent”

Field agents brought nearly all waters and wetlands under the risk of CWA jurisdiction by engaging in fact-intensive “significant-nexus” determinations that turned on a lengthy list of hydrological and ecological factors.


Under the agencies’ current rule, traditional navigable waters, interstate waters, and the territorial seas, as well as their tributaries and adjacent wetlands, are waters of the United States. By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.


Finding a significant nexus continues to require consideration of a list of open-ended factors. However, the court requires EPA to re-visit and revise its currently overreaching interpretation.


Geographical Application

With respect to “the waters of the United States,” the Court concludes that the Clean Water Act’s use of “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” The wetland has a contin­uous surface connection with that water, making it difficult to deter­mine where the ‘water’ ends, and the ‘wetland’ begins.”


EPA Request to Defer

The EPA asked the Court to defer to its most recent rule providing that “adjacent wetlands are covered by the [CWA] if they ‘possess a significant nexus to’ traditional navigable waters” and that wetlands are “adjacent” when they are “neighboring” to covered waters. For multiple reasons, SCOTUS concluded that the EPA’s position lacks merit.


Implications

The May 25, 2023, US Supreme Court ruling in Sackett v. Environmental Protection Agency adds clarity for property owners as to what constitutes adjacent wetlands. The Court provided plain language that helps property owners better understand the reach of interpretation by federal agencies when it comes to “mundane items such as moving dirt” or the penalties for pollution that can be assessed at the federal level.


The wetlands issue is grounded in the question of the balance of federal and state power over property rights. The Court cited the long-standing precedence that “exceedingly clear language” is required if Congress wishes to alter the federal-state balance or the government’s power over private property. the EPA’s interpretation gives rise to serious vagueness concerns in light of criminal penalties, thus implicating the due process requirement that penal statutes be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Finally, the Court cites that it is difficult to see how the states’ “responsibilities and rights” in regulating water resources would remain “primary” if the EPA had such broad jurisdiction.


The ruling related to the wetlands ruling is about the limits of federal interpretation of the language of the Clean Water Act. From a practical perspective, the implications are that the CWA could be amended to reflect the current will of the people at the federal level. More likely, the nuances of wetland interpretation will be a matter for individual states.


References

Sackett et ux. v. Environmental Protection Agency et al., No. 21–454. (Supreme Court of the United States, Argued October 3, 2022—Decided May 25, 2023)


 

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