June 5, 2023by Andrew Wilson0

In its recent Sackett v. EPA decision 1, the Supreme Court of the United State (SCOTUS) has now drastically reduced the number of water bodies and wetlands that are to be considered “Waters of the United States” (“WOTUS”) under the wording of the Clean Water Act 2 (“CWA”). As a result they will no longer be subject to the jurisdiction of both the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers. (“Corps”). To reach this result, the Supreme Court developed a new test and definition for these agencies’ jurisdictional wetlands which will now exclude millions of acres of formally protected wetlands and water bodies from CWA jurisdiction and protection.

This is great news for developers, ranchers, and landowners with tracts of land containing wetlands or waterbodies, as well as industrial interests which would otherwise require permits to discharge large amounts of pollutants into existing water bodies. This is devastating news for waterfowl hunters, naturalists, conservationists, environmentalists and communities concerned about protection of wetlands. Throughout the country, wetlands play a vital role in safeguarding our communities from the impacts of natural disasters such as hurricanes and flooding, ensuring fresh drinking water, providing nurseries for seafood/aquatic species and supporting hubs of biodiversity in unique ecosystems.

For almost five decades since the CWA was enacted, the test for WOTUS, i.e., determining the two agencies’ jurisdictional wetlands, has been the subject of back-and-forth regulatory interpretation and rulemaking by both the EPA and the Corps as one administration would be followed by another of a different political leaning. Meanwhile, the courts, particularly the Supreme Court, would then add their own interpretation or test on the WOTUS definition in effect from time to time.

The Supreme Court’s last CWA jurisdictional pronouncement was seventeen years ago with the 4-1-4 plurality opinion in Rapanos v. United States 3. Back then, Justice Kennedy concurred only in the judgment on wetland status, writing to establish a new jurisdictional test. He wrote that CWA jurisdiction over adjacent wetlands requires a “significant nexus” between the wetland and its adjacent navigable waters, which exists when “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of those waters.

At present, the current definition of WOTUS in the guidance documents applied by the two agencies relies heavily on Rapanos and includes “[i]ntrastate lakes and ponds, streams, or wetlands” that either have a continuous surface connection to categorically included waters or have a significant nexus to interstate or traditional navigable waters. The previous administration had attempted to drastically alter the rule to restrict the definition of WOTUS and, in turn, the number of jurisdictional wetlands. The current administration jettisoned that rule and sought to promulgate a new rule incorporating a different version of the “significant nexus” test once again. But now that rule-making process is on hold because of the Sackett decision.

In Sackett, all nine Justices agreed that the property at issue should not be regulated but the Justices differed 5-4, as to the test for which wetlands and water bodies should or should not be subject to CWA jurisdiction. Justice Alito wrote the majority opinion which rejected the “significant nexus” test and held that the two agencies’ wetlands regulatory jurisdiction is limited to wetlands with a “continuous surface connection” to established jurisdictional waters of the United States. To reach this conclusion, Justice

Alito conflated the broader term, “adjacent,” with the narrower term “adjoining,” and then ignored the “adjacent thereto” language of Section 404, labeling it an “obscure” part of the CWA despite the fact that 404 Permits remain a major trigger for CWA litigation. Indeed, the dispute in Sackett arose when the Plaintiffs obtained no 404 Permit before beginning to fill in a wetland on the other side of a road which had cut off the wetland from a tributary to a nearby lake. The Sacketts had been stopped by the EPA from proceeding further, prompting their lawsuit in her concurrence (which was closer to a dissent) in which Justices Sotomayor and Brown-Jackson joined, Justice Kagan took issue with the majority’s statutory interpretation. As she stated:

“’Adjacent’” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone.”

She also described the majority opinion as “a thumb on the scale for property owners.” Finally, justice Kagan complained of the conservative Court’s “appointment of itself as the national decision-maker on environmental policy.” In this regard, the conservative Court recently granted certiorari in Loper Bright Enters. v. Raimondo 4, which will probably prove to be the death knell for deference to an agency on the interpretation of its own rules under the long-standing Supreme Court precedent of Chevron, U.S.A., Inc. v. NRDC, Inc. 5 If Chevron is overruled in the Court’s fall term, which appears likely, there will be a massive upheaval within the established precedents interpreting existing rules promulgated over the years by all federal agencies, particularly the EPA and the Corps.

Surprisingly, even conservative Justice Kavanaugh disagreed with the majority’s new test. In a lengthy concurring opinion (which was also more of a dissent) in which Justices Sotomayor, Brown Jackson, and Kagan also joined, Justice Kavanaugh rejected not only the “significant nexus” test but the conservative majority’s “continuous surface connection” test as well, criticizing the majority’s statutory interpretation:

“In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some 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.”

In sum, the Court’s Sackett decision will no doubt lead to regulatory uncertainty on both federal and state levels, and in all likelihood open a floodgate of litigation challenging jurisdictional wetland determinations. Since southern Louisiana contains 40 to 45 percent of the wetlands found in the lower 48 states, much of that litigation will likely occur here.

1 2023 U.S. LEXIS 2202 (CA No. 21-254, May 25, 2023)
2 33 U.S.C. §1251, et seq. (1972)
3 547 U.S. 715 (2006)
4 2023 U.S. LEXIS 1847 (No. 22-451 May 1, 2023)
5 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

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