U.S. Supreme Court Relaxes Restrictions under the Clean Water Act on Development in Wetlands
On May 25, 2023, the U.S. Supreme Court established a more stringent test to determine when wetlands come under the jurisdiction of the federal Clean Water Act (“CWA”). In Sackett v. EPA, No. 21-454, 598 U.S. ___ (2023), the Supreme Court held that only those wetlands that adjoin interstate waters may be regulated by the U.S. Environmental Protection Agency (“EPA”) or Army Corps of Engineers (“ACE”), undercutting previous decisions by the Court. This decision will have profound impacts on the rights of property owners and commercial entities whose properties contain wetlands, or who wish to develop property in wetlands, while threatening millions of acres of wetlands previously afforded protection under the CWA.
In Sackett, Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for the building of a home. The EPA informed the Sacketts that their property contained wetlands and that their backfilling violated the CWA, which prohibits discharging pollutants into “the waters of the United States.” 33 U. S. C. § 1362(7). The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day. The EPA classified the wetlands on the Sacketts’ lot as “waters of the United States” because the property was 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 Supreme Court, in an opinion penned by Justice Samuel Alito, and joined by Justices Gorsuch, Roberts, Thomas and Barrett, held that the CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’”[i] and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. Id. at 22. The EPA and ACE had been gradually expanding the reach of the CWA pursuant to the earlier Rapanos v. United States, 547 U.S. 715 (2006) decision, and other prior decisions of the Court, to include any wetland or body of water that had a “substantial nexus” to “waters of the United States.” Under the new, more stringent test, to assert jurisdiction over a wetland under the CWA, the EPA or ACE must first establish that the adjacent body of water constitutes “water[s] of the United States,” i.e., is 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.” Sackett, supra, at 22. Thus, even if a wetland serves an integral role in an aquatic ecosystem, is necessary for flood control, or by its proximity, helps filter pollutants from a body of intrastate water, it may no longer be afforded protection under the CWA if separated by any natural or man-made barrier.
The environmental advocacy group Earthjustice, which filed an amicus brief in the Sackett case, said the court’s decision “undoes a half-century of progress generated by the Clean Water Act,” eliminating protections from almost 90 million acres (36.4 million hectares) of wetlands. President Joe Biden said in a statement that the ruling upends the legal framework used for decades to combat water pollution and that his administration will “use every legal authority we have to protect our nation’s waters.” The Supreme Court’s opinion was a unanimous decision in judgment only. While all justices agreed as to the resolution of the case before them, several of the justices filed separate opinions that criticized the majority’s decision to limit the breadth of the protections afforded under the CWA. Justice Kavanaugh dissented by arguing that the majority’s decision was contrary to legislative intent that all adjacent wetlands be protected, and not just those that have a direct, surface connection with “waters of the United States.” Justice Kagan went so far as to decry that the Court had seemingly appointed itself “the national decision-make on environmental policy,” after its recent decision to also limit the authority of the EPA to regulate greenhouse gas emissions. Id. at 6; see also, West Virginia v. EPA, 142 S. Ct. 2587 (2022).
This is an important decision for property owners, developers and commercial entities whose properties contain wetlands. Under the new test under the Federal Clean Water Act, unless a wetland has a continuous surface connection to intrastate, navigable waters, property owners will no longer be subject to restrictions on developing or filling the wetland for purposes of constructing homes or other uses of the property. Notwithstanding the Supreme Court’s decision, as it presently stands, wetlands entirely within the State of New Jersey will still be subject to the State’s more restrictive regulations on development in wetlands, as under the CWA, a state has primary authority to combat water pollution by regulating land and water use. As such, the Supreme Court’s rollback of CWA applicability to wetlands is not anticipated to limit New Jersey’s regulation of wetlands subject to state statutes and regulations.
[i] Sackett, supra, at 14.