Tag: Significant Nexus

U.S. SUPREME COURT LIMITS FEDERAL PERMITTING JURISDICTION UNDER THE CLEAN WATER ACT, HOLDING THAT ONLY WETLANDS WITH A SURFACE CONNECTION TO INTERSTATE NAVIGABLE WATERS CONSTITUTE “WATERS OF THE UNITED STATES.”

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SUMMARY AND UPDATE

In a highly-anticipated decision published on May 25, 2023, the United Stated Supreme Court in Sackett v. Environmental Protection Agency (2023) 598 U.S. __, 143 S.Ct. 1322 (No. 21-454), resolved the long-standing debate over the definition and scope of “waters of the United States” under the Clean Water Act. The unanimous opinion authored by Justice Alito significantly narrows the jurisdictional reach of the EPA and Army Corps by adopting the Court’s earlier plurality opinion in Rapanos v. U.S. to hold that only those wetlands with geographical features that are “indistinguishable” from traditional navigable waters due to a continuous surface connection are subject to federal regulation under the Clean Water Act. The Court applied this new standard to conclude that the EPA lacked regulatory and permitting authority over wetlands located adjacent to land owned by petitioners Michael and Chantell Sackett because those wetlands were distinguishable from covered waters.

Factual & Procedural Background

In 2004, Petitioners Michael and Chantell Sackett (the Sacketts) began backfilling land on their property near Priest Lake, Idaho, across the street from a tributary that feeds a non-navigable creek. While the parcel does not share a “continuous surface connection” with the tributary, the land could, at times, be hydrologically connected to the tributary and, by extension, Priest Lake.

After an enforcement action brought by EPA and after nearly a decade of litigation, the District Court entered summary judgment in favor of the EPA, holding that the Sacketts’ land was subject to CWA protections. The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.

The Supreme Court’s Opinion

The U.S. Supreme Court granted certiorari to decide the proper test for determining whether the wetlands on the Sacketts’ property constituted “waters of the United States” under the CWA.

The Court’s Holding – Defining “Waters of the United States”

Against the backdrop of a much litigated CWA history regarding jurisdiction, and relying heavily on earlier Supreme Court decisions (i.e., Rapanos), the 9-0 majority in Sackett held that the CWA’s use of the term “waters” in “waters of the United States” refers only to “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.’” As such, adjacent wetlands only constitute statutory “waters of the United States” if they are “indistinguishable” from those bodies of water due to a continuous surface connection.

The Court agreed with the plurality in Rapanos that wetlands subject to the CWA include those that are “indistinguishable” from bodies of water that traditionally constitute “waters of the United States.” This only occurs when wetlands have “a continuous surface connection” to bodies of WOTUS, such that there is “no clear demarcation between ‘waters’ and ‘wetlands.’” Accordingly, to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that: (1) “the adjacent body of water constitutes [WOTUS] (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and (2) “the wetland has a continuous surface connection with … a relatively permanent body of water connected to traditional interstate navigable waters,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

In articulating this bright-line rule, the Court declined to defer to the EPA’s 2023 “wetlands” rule, which provides 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.” The Court, in part, relied heavily on the thought that the assertion of jurisdiction should be clear so that those regulated can determine if their actions trigger the need for federal permitting and whether proposed “fill” activities can be subject to federal criminal enforcement.  In so doing, the Court relied on dictionary definitions and reasoned that the EPA’s earlier regulatory interpretations were inconsistent with the text of the CWA because the Act contained no “exceedingly clear language” indicating Congress’ intent.

Despite the Court’s focus on the need for clear language, the opinion provides that “[the Court] also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”  Here the Court raises a question with respect to what amounts to a “continuous” surface connection during drought, for instance.  Indeed, how “dry” is “dry” and how long does a feature need to be “dry” before it is no longer a “temporary” interruption of flow.

Recent Updates

Both EPA and the Corps have gone on record in saying that they anticipate issuing a federal rule addressing the Court’s opinion in September 2023. In addition, various Corps Districts are modifying procedures in anticipation of this proposed rule and/or guidance. For instance, the Sacramento District has suspended processing Approved Jurisdictional Determinations (AJDs) and will verify only Preliminary Jurisdictional Determinations (PJDs).

Numerous NGOs, policy groups and agencies are attempting to determine the impact of the ruling on their programs. For instance, the National Association of Homebuilders (NAHB) has conducted talks with aquatic resource consultants and scientists in an effort to determine the likely effect of future regulation and permitting. That input generally recognizes that “one size” will likely “not fit all” given the wide variety of regional wetland hydrology. In particular, regions with “ephemeral” Mediterranean climates like California will be affected differently than those with consistently wetter climates.

Brian Plant, of counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions arising under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at [email protected].

The Future of Wetlands and Waters of the United States: U.S. Supreme Court Grants Review of Sackett v. EPA

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On January 24, 2022, the United States Supreme Court granted review of Sackett v. U.S. EPA (No. 21-454) to consider whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands constitute “waters of the United States” under the federal Clean Water Act. (33 U.S.C. § 1362(7).) The Supreme Court’s second grant of certiorari marks a pivotal development in a long-running legal battle between the Sacketts—an Idaho couple seeking to build a home near Priest Lake—and the EPA, which has maintained that the Sacketts’ property contains wetlands subject to federal jurisdiction and permitting.

Factual Background

The Sacketts own a residential lot in Bonner County, Idaho, that lies just north of Priest Lake. To prepare for construction of a house, the Sacketts filled part of their lot with dirt and rock. Several months later, the Sacketts received a compliance order from the EPA stating that the lot contained wetlands that were adjacent to Priest Lake, which was a “navigable water” within the meaning of section 502(7) of the Clean Water Act (CWA) and constituted “waters of the United States” within the meaning of 40 C.F.R. § 232.2. The compliance order found that the Sacketts violated the CWA by impermissibly discharging pollutants into navigable waters. The order directed the Sacketts to remove the fill and restore the lot to its original condition, or be subject to civil penalties.

March 2012: Initial Lawsuit & Supreme Court Decision

The Sacketts sought, but were denied, an administrative hearing before the EPA. The Sacketts thus filed suit in the U.S. District Court of Idaho, contending that the compliance order violated the Administrative Procedure Act and the Sacketts’ due process rights. The petition alleged the EPA acted arbitrarily and capriciously by issuing the compliance order, and deprived the Sacketts of life, liberty, or property without due process of law in violation of the Fifth Amendment. The District Court dismissed the action due to lack of subject-matter jurisdiction. The Ninth Circuit affirmed, finding that the CWA precluded pre-enforcement judicial review of compliance orders, and that such preclusion does not violate the Fifth Amendments’ due process guarantee.

In 2012, the Supreme Court granted review of the Ninth Circuit’s decision to consider whether the EPA’s compliance order constituted a “final agency action” that could be subject to judicial review. The Supreme Court unanimously held in favor of the Sacketts, finding that the order had “all the hallmarks of APA finality.” In an opinion authored by the late Justice Scalia, the court held that the EPA’s order “determined” the “rights or obligations” of the Sacketts by imposing “legal consequences” that “flowed” from noncompliance with its terms. Because the EPA denied them an administrative hearing, the Sacketts possessed “no other adequate remedy in a court” so as to challenge the nature and scope of the order and administrative penalties therein.

August 2021: The Ninth Circuit’s Decision on Remand

On August 16, 2021, the Ninth Circuit issued its opinion on the merits of the Sacketts’ claims. The court of appeal held that the EPA reasonably determined that the Sacketts’ property contained wetlands. The court explained that Justice Kennedy’s interpretation and understanding of “significant nexus” in his concurring opinion in Rapanos v. United States (2006) 547 U.S. 715, provided the standard for determining when wetlands are regulated under the CWA. Applying that test, the panel held that the standard was satisfied because evidence in the record supported EPA’s conclusion that wetlands on the Sacketts’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a navigable water that is regulated under the CWA.

January 2022: The Supreme Court’s Second Grant of Certiorari – Implications

Since the Supreme Court’s decision in Rapanos, most lower courts have relied on Justice Kennedy’s “significant nexus” test as the governing standard. Nevertheless, the split of opinion in Rapanos, coupled with the lack of executive rulemaking to clarify the scope of the EPA’s CWA jurisdiction, has created confusion. As such, the Supreme Court’s second grant of certiorari could mark a momentous step in the ongoing debate about the appropriate “WOTUS” test.

The Supreme Court will consider “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” The Sacketts urge the Court to adopt the four-justice plurality’s test in Rapanos, which, unlike the “significant nexus” test, would allow regulation of wetlands only when they have a continuous surface water connection to regulated waters of the United States. In contrast, the EPA maintains that a rule divergent from the significant nexus test would deprive the agency of “authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity.’”

Though the Court will likely hear this case in October 2022, with a decision to follow in early 2023, it remains to be seen how the pending outcome will affect the EPA’s current implementation of, and revisions to, the “WOTUS” rule. Either way, the scope of federal jurisdiction in regulating and protecting the nation’s wetlands and navigable waters will be decided by our highest court yet again, hopefully yielding greater clarity on the issue rather than further muddying the waters.

– Bridget McDonald