NACD Government Affairs Update: Supreme Court Releases Opinion on WOTUS Definition

On May 25, the Supreme Court released an opinion in Sackett v. Environmental Protection Agency (EPA) where they held that the “Clean Water Act’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’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection”. This ruling will impact which wetlands are considered adjacent to waters of the United States (WOTUS) and therefore, whether those wetlands are under state or federal jurisdiction.

This decision aligns with NACD’s comments on the various WOTUS rules requesting that significant nexus no longer be used as a determination of legal connection, and that jurisdictional waters should be indistinguishable from tributaries and traditional navigable waterways. Or as quoted in the opinion, “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 citing Rapanos).

Recently, some members of Congress have floated the idea of amending the Clean Water Act (CWA) to clear up some of the more ambiguous definitions. It is unlikely, given this decision, that Congress will have any further interest in developing their own definition of WOTUS. Some members of the Court raised concerns that the agencies are in the best position to make policy decisions and the majority opinion will impact the ability of EPA and the Army Corps to develop sufficiently protective regulations. EPA Administrator Michael Regan stated that he is disappointed in the decision but will be taking a hard look at the rule and really consider what the next steps may be.

The original case was a dispute stemming from a home building project on marshy land that was ultimately separated from the jurisdictional water by a road. There was no observable surface connection to the stream or lake and its adjacent wetlands. EPA determined that, hydrologically, there was a significant nexus to those features. In its definition of adjacency, the current WOTUS rule that went into effect in March of 2023 relies primarily on significant nexus, the scientific hydrologic connection of wetlands and other water features to jurisdictional waters, to create a legal adjacency. Adjacent wetlands are an enumerated protected water feature within the CWA and are integral for water quality, flood control, and provide ecologically diverse wildlife habitat. Historically, when determining adjacency, EPA has relied on agency guidance developed from the 2008 Rapanos Kennedy opinion, and not the less stringent Scalia theory that states that “waters” in the CWA include only “relatively permanent, standing or continuously flowing bodies of water.” The Clean Water Act does not cover groundwater and the determination of significant nexus in certain places can be very time consuming, expensive, and not easily distinguishable for the landowner. However, given that the plurality (4/4) decisions in Rapanos have created this conflict between significant nexus and continuous surface connection by not giving clear guidance on determining jurisdiction or adjacency, the hope is that this most recent decision will create a little more clarity and consistency for both landowners and regulators.

Tags: government affairs

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