The U.S. Supreme Court, in a sharply divided 5-4 opinion, ruled in favor of an Idaho couple and against the Environmental Protection Agency (EPA), establishing a more stringent test to determine whether the Clean Water Act (CWA) applies to a wetland. In what has become a decades-long battle over the interpretation of the statutory meaning of "waters of the United States," the Court adopted a new standard that the CWA will only apply to wetlands that have a "continuous surface connection" with a larger body of water.
Sacketts’ 15-Year Legal Battle Over Wetland
In 2007, Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the empty lot with dirt to prepare for building a home. The Sacketts received a notice from EPA to cease work because the lot contains wetlands protected by the CWA, which bars pollutants – including rocks and sand from backfill – into "navigable waters." The CWA defines "navigable waters" as "waters of the United States." 33 U.S.C. §1362(7). The basis of EPA’s reasoning in its notice to the couple was that the wetlands on their property fed into a non-navigable creek that then led into Priest Lake (a navigable, intrastate lake).
The U.S. District Court for Idaho issued a summary judgment in favor of EPA. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court, applying the test outlined by Justice Anthony Kennedy in the 2006 Supreme Court case, Rapanos v. United States, 547 U.S. 715 (2006), which looked to whether there is a "significant nexus" between wetlands and waters that are covered by the CWA, and whether the wetlands "significantly affect" the quality of those waters. On Thursday, the Supreme Court reversed the Ninth Circuit ruling.
New, More Stringent Test Outlined in Majority Opinion
Justice Samuel Alito (joined by Justices Thomas, Gorsuch, Barrett, and Chief Justice Roberts) opined that the majority’s view of the CWA shows the use of the term "waters" generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some "adjacent" wetlands will also qualify as "waters of the United States." Under this test, wetlands that are entirely separate from "traditional" bodies of water will not qualify. The CWA will only apply if the wetlands are "as a practical matter indistinguishable from waters of the United States" because they have a "continuous surface connection" with a larger body of water, making it "difficult to determine whether the 'water' ends and the 'wetland' begins."
Under this new test, the Sacketts’ prevail, as the Court found the wetlands located on their property to be "distinguishable from any possible covered waters." Alito referred to Justice Kenney’s "significant nexus" case in Rapanos as "particularly implausible" and that landowners would find it impossible to determine whether the CWA applied to their property.
The four dissenting justices, Sotomayor, Kagan, Jackson, and Kavanaugh, agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but disagreed with the majority’s reasoning. Justice Kavanaugh’s dissenting opinion, joined by the three liberal justices, argued that by narrowing the CWA’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave long-regulated adjacent wetlands no longer covered by the Clean Water Act, with "significant repercussions for water quality and flood control throughout the United States." The dissent further contended that the ruling of the majority "departs from the statutory text, from 45 years of consistent agency
practice, and from this court’s precedents."
Impacts of the Ruling Will Extend Nationwide
The ruling will alleviate some burdens on landowners, including significant business interests looking to avoid a broadly sweeping law that could "criminalize mundane activities like moving dirt," with supporters feeling that the decision will provide a "measuring stick" for landowners and businesses and give considerable freedom to fill in wetlands without going through the federal permit process previously required.
Michael Regan, the administrator of EPA, said in a statement that the ruling "erodes longstanding clean water protections" and that the Agency will review the ruling and "consider next steps." Any further federal agency actions or moves by individual states to strengthen their own environmental laws will be closely watched in the coming year as the impact of this ruling settles.
Ohio Will Still Regulate Many of the Wetlands No Longer Regulated by EPA
Although this ruling will eliminate federal jurisdiction of many wetlands in the state of Ohio, pursuant to Ohio law (ORC §6111.02 through ORC §6111.028) "Isolated Wetlands," that is, wetlands that are not connected to other surface waters, are "waters of the State of Ohio" and will still be regulated by the Ohio EPA, Division of Surface Water. There are three levels of isolated wetlands permit review, depending on the size of the impact and the quality of the wetlands to be impacted. For impacts of less than 0.5 acres, a General Permit is available with submittal of the applicable fees and completion of a Pre-Activity Notice (PAN) to Ohio EPA. For larger impacts on isolated
wetlands, a more detailed review process will be necessary. In all cases, a jurisdictional determination from the appropriate Army Corps of Engineers district will be required as a part of the application process.
For counsel on the application of the Clean Water Act on potential land projects, contact an attorney from Calfee’s Environmental Practice Group.
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