The US Supreme Court has just handed down a highly anticipated decision in Sackett v. EPA, reining in the federal government’s ability to regulate wetlands under the Clean Water Act (CWA). Specifically, this ruling provides important clarity on whether CWA applies to wetlands not directly adjacent to “waters of the United States.”
The Sacketts, the Idaho property owners that have battled the federal government in this case for many years, sought clarification from the Court on whether the federal government could regulate wetlands on their property and prevent the couple from building on their land. Specifically, the Sacketts’ property contained wetlands near a ditch that fed into a non-navigable creek that in turn fed into Priest Lake more than 300 feet away from their property. The Court ruled unanimously that the Sacketts were not subject to federal CWA permitting, but split 5-4 on the CWA’s applicability to adjacent wetlands.
Justice Samuel Alito, the majority opinion’s author, held that, “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable’ from those waters.” In sum, the Court established a two-part test to determine if an adjacent wetland falls within the definition of “waters of the United States” so as to be under the CWA’s jurisdiction: (1) a party must establish “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 (2) the wetland has a ‘continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” In essence, the Court found that the CWA applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.
In the case of the Sacketts, the Court ruled that the Sacketts’ wetlands were “distinguishable from any possibly covered waters.” Consequently, the CWA did not apply, and the federal government could not regulate the Sacketts’ building activities. This narrow reading of the CWA is a win for land developers, farmers and others in the energy sector who’ve recently experienced excessive enforcement of environmental regulations.
Although this ruling has a large impact around the country, its significance is much smaller in Michigan, which has its own wetland statute (Part 303 of Michigan’s Natural Resources and Environmental Protection Act) that is more restrictive than the CWA’s rule.
For more information about this landmark case, or wetland regulation contact a member of Varnum’s Environmental Law Practice Team.