On May 25, 2023, the Supreme Court's decision in Sackett v. Environmental Protection Agency narrowed the definition of "waters of the United States" (WOTUS). The vote was 9-0. There is ongoing concern that the decision could decrease the protection of wetlands. One year after the Sackett decision, has anything related to wetlands changed?
Key Changes Related to the Sackett Decision
Narrowed the Definition of WOTUS
The Supreme Court ruled that only those wetlands with a "continuous surface connection" to bodies of water that are "relatively permanent" or "standing or continuously flowing" fall under federal authority.
Eliminated the "Significant Nexus" Test
The decision rejected the "significant nexus" test established after a previous court decision in 2006. The test broadened the scope of waters subject to federal oversight.
Reframed Adjacent Verus Adjoining
There were differences in the reasoning among the Justices although the decision was unanimous. The biggest and most overlooked comes from Judge Kavanaugh, who departs from the majority on the interpretation that “adjacent” wetlands are the same as "adjoining" wetlands.
Some Brief Background
These are a few key highlights from the decision. If the legal wording gets too weedy, skip to the subsequent "One Year Later" section.
The Sacketts
From the SCOTUS Decision, pages 4 and 5
Michael and Chantell Sackett have spent well over a decade navigating the CWA, and their voyage has been bumpy and costly. In 2004, they purchased a small lot near Priest Lake, in Bonner County, Idaho. In preparation for building a modest home, they began backfilling their property with dirt and rocks. A few months later, the EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property contained protected wetlands. The EPA demanded that the Sacketts immediately “‘undertake activities to restore the Site’” pursuant to a “‘Restoration Work Plan’” that it provided. Sackett v. EPA, 566 U. S. 120, 125 (2012). The order threatened the Sacketts with penalties of over $40,000 per day if they did not comply.
The Wetlands Determination
From the SCOTUS Decision, pages 5 and 6
According to the EPA, the “wetlands” on the Sacketts’ lot are “adjacent to” (in the sense that they are in the same neighborhood as) what it described as an “unnamed tributary” on the other side of a 30-foot road. App. 33. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as “similarly situated.” According to the EPA, these properties, taken together, “significantly affect” the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto “the waters of the United States.”
The Supreme Court’s Sackett Wetlands Decision
From the SCOTUS Decision, page 22
In sum, we hold that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.” Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States,’ (i.e., 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.” Id., at 742.
Ordinary People Must Be Able to Understand
From the SCOTUS Decision, page 24
Second, the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes "'with sufficient definiteness that ordinary people can understand what conduct is prohibited'" and "'in a manner that does not encourage arbitrary and discriminatory enforcement.'"
Justice Kavanaugh’s Concurrence but Concerns
From Kavanaugh’s Concurring Opinion, pages 14-15
In my view, the Court’s new test is overly narrow and inconsistent with the Act’s coverage of adjacent wetlands. The Act covers adjacent wetlands, and a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, berm, beach dune, or the like. The wetlands on the Sacketts’ property do not fall into either of those categories and, therefore, are not covered under the Act as I would interpret it. Therefore, like the Court, I would reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand for further proceedings. But I respectfully concur only in the Court’s judgment.
One Year Later
Our niche company has active projects in a handful of states, including North Carolina, South Carolina, Missouri, and Florida. I tapped into three other trusted wetlands experts who deal with these issues weekly in multiple states.
On the Ground
The consensus is that nothing has changed in practical terms. The jurisdictional determinations are the same as they were before Sackett. Yes, the US Army Corps of Engineers is giving lip service to modified criteria. But for now—one year after Sackett—wetlands determinations are the same as they ever were.
People Need Their Permits
The harsh reality is that most people need their permits, so fighting federal or state agencies isn’t worth the time it takes. The agencies know this, too. Little will change until someone feels enough pain to fight.
Attorneys Understand It, Too
Some of my environmental attorney friends continue to sound the narrative alarm—both for and against Sackett's repercussions. But don't confuse this with righteousness. They know it will need to be worked out in court, and the lawsuits are starting to dribble in.
The Chevron Reversal Changes the Game
The reversal of several other cases, including Chevron, by the Supreme Court also changes the game. These actions take some interpretation power away from the agencies and put them in the courts. That makes some of the actions impermissible that were done during the Obama administration, reversed by the Trump administration in their last year, and reversed again by the Biden administration. Read Sackett and you’ll see clearly where the Chevron case et al were heading.
Wetlands interpretation has been shaky for nearly two decades. Bookend Rapanos (2006) with Sackett (2023) and Chevron reversal (2024) and you’ll see the High Court regaining some stability for ordinary Americans.
No Losses of Wetlands
As of now, there is limited hard evidence linking wetland loss directly to the Supreme Court’s Sackett decision. Sackett is relatively recent, the federal government changes slowly, and lawsuits take time to work through the courts.
Many states, like North Carolina, are tracking wetland loss more closely since Sackett. That’s a good thing, too.
JD Solomon Inc. provides solutions for program development, asset management, and facilitation at the nexus of facilities, infrastructure, and the environment. Sign up for monthly updates related to our firm.
JD Solomon is the founder of JD Solomon, Inc., the creator of the FINESSE fishbone diagram, and the co-creator of the SOAP criticality method. He is the author of Communicating Reliability, Risk & Resiliency to Decision Makers: How to Get Your Boss’s Boss to Understand and Facilitating with FINESSE: A Guide to Successful Business Solutions.
Comments