Yesterday, the United States Supreme Court curtailed the federal government’s powers to regulate private property under the auspices of the Clean Water Act (CWA). The Court in Sackett v. EPA 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. After almost 20 years of litigation against the federal government, the Court confirmed the Sacketts were right all along – their “wetlands” are not subject to federal regulation—and clarified an issue that had been unsettled for more than 30 years: The jurisdictional reach of the CWA.
The powers of the Environmental Protection Agency and Army Corp of Engineers (Agencies) under the CWA are directly tied to the definition of “waters of the United States” (WOTUS). In Rapanos v. United States—the last case in which the Court examined the breadth of the WOTUS definition—the court split 4-1-4. One set of four justices, led by Justice Scalia, opined that WOTUS should include only relatively permanent standing or flowing bodies of water. The other set of four justices, led by Justice Stevens, opined that the phrase should also include intermittent waterways. Finally, Justice Kennedy opined that “waters of the United States” should include areas with a “significant nexus” to a traditional navigable waterway. Since Rapanos, most courts, and the Agencies when under Democrat control, essentially employed Justice Kennedy’s significant nexus test.
The Sacketts bought a residential lot near Priest Lake, Idaho and began backfilling the lot as a home site in 2004. Shortly thereafter, the EPA informed the Sacketts that the backfilling had violated the Clean Water Act’s prohibition on discharging pollutants (including soil) into WOTUS. The EPA determined that the wetlands on the Sacketts’ lot had a significant nexus to WOTUS because the wetlands were near a ditch that fed into a creek, which fed into Priest Lake.
The Court in Sackett adopted Scalia’s test for what constitutes WOTUS, holding that the Clean Water Act’s use of “waters” refers only to geographical features that are described in ordinary parlance as “streams, oceans, rivers, and lakes” and to adjacent wetlands that are indistinguishable from those bodies of water due to a continuous surface connection.
Because of the newly-clarified scope of WOTUS, landowners should see their administrative and temporal costs substantially reduced—especially in arid states like Arizona, Nevada, and New Mexico where the Rapanos scope of WOTUS enabled the Agencies to assert jurisdiction over washes and other land features which are dry for much of the year.