The U.S. Supreme Court recently issued an important decision that restricts the jurisdictions of the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (USACE) over wetlands.
Background
In Sackett v. Environmental Protection Agency, et al., landowners Michael and Chantell Sackett purchased property in Idaho and began backfilling their lot with dirt in anticipation of building a home. The project was interrupted when EPA informed the Sacketts that their property contained protected wetlands constituting “waters of the United States.” EPA alleged that their unpermitted backfilling violated Section 404 of the Clean Water Act (CWA), and ordered the Sacketts to restore the site under a Restoration Work Plan, or alternatively face substantial, daily financial penalties.
The Sacketts sued, contending that the wetlands on their property were too attenuated and did not constitute “waters of the United States” under the CWA.
The trial judge and the U.S. Court of Appeals for the Ninth Circuit both ruled in favor of the EPA, holding that the plaintiff landowners needed a wetlands permit for the backfilling activities. On May 25, 2023, however, the U.S. Supreme Court reversed the lower courts, finding that the term “waters of the United States” applies only to permanent bodies of water: commonly streams, rivers, lakes, and, of relevance here, adjacent wetlands that, as a practical matter, are indistinguishable from other permanent waters.
Under the Supreme Court’s ruling, only wetlands “with a continuous surface connection” to water bodies, where it would be “difficult to determine where the water ends and the wetland begins,” fall within the CWA’s purview.
The Supreme Court’s rejection of the EPA’s broad interpretation of “waters of the United States” comports with its other recent environmental decision, West Virginia v. EPA, where the justices held that the EPA exceeded its authority under the Clean Air Act when it issued the 2015 Clean Power Plan. Both opinions underscore the need for clear congressional authorization when expanding the scope of administrative regulatory power.
The Sackett decision specifically erodes the EPA’s jurisdiction over truly isolated wetlands – not directly connected to navigable waters – and clarifies the CWA’s finite reach.
Impact on Current and Future Projects
This case will undoubtedly impact future permitting and enforcement. It may trigger delays in getting approvals from the USACE on current development projects with pending wetland applications or jurisdictional requests, as the USACE will likely need time to get further instruction and guidance as to the impact of this decision on its jurisdiction.
Future projects may also be delayed pending release of further guidance to USACE. Upon issuance of that guidance, certain development projects involving isolated wetlands will no longer be subject to federal permitting. In other states, such as Pennsylvania, state environmental agencies will likely still require wetlands permits in most circumstances, but fewer projects will need joint permits with USACE.
Lastly, this ruling may translate to more project involvement with environmental consulting firms to focus on the issue of whether the wetlands are truly isolated and not connected directly to navigable waters.
The bottom line is the latest decision may complicate and delay projects requiring wetlands permits in the short term, but may streamline wetlands permits for some projects where there is no demonstrated connection to navigable waters, eliminating USACE and EPA from the permitting process.
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