Thoughts From Engineers: Supreme Court Slices CWA’s Reach
I have never owned property disputed to contain wetlands or had my plans to develop a property blocked because of the presence of wetlands. No doubt, in such a situation I would have felt cheated of important rights, not unlike Michael and Chantell Sackett, plaintiffs in the recently decided Supreme Court of the United States (SCOTUS) case of Sackett v. EPA (May 25, 2023, bit.ly/SackettEPA). The couple received notice of a Clean Water Act (CWA) violation due to the presence of wetlands as they backfilled ground on their lot near a lake in Idaho to prepare it for construction. This was followed by an order to undo the damage, along with notice that failure to do so would result in penalties to the tune of $40,000 daily. Litigation dragged on for more than a decade prior to reaching SCOTUS.
SCOTUS ultimately held in favor of the Sacketts in a decision that rattled wetlands advocates across the country. To briefly paraphrase the ruling, the Court held that the CWA mainly pertains to navigable or predominantly “open” waters and wetlands that are indistinguishable from waters with a clear surface connection. This means the wetlands on Sackett’s property, separate from the nearest body of navigable water, are not protected under the CWA. SCOTUS held that to give the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) jurisdiction over isolated wetlands would not only ignore the intent of Congress and the plain language of the CWA but take authority away from the states to manage the use of shorelands and wetlands.
The court reached its decision mainly by looking at historic definitions of the keywords contained in the CWA; and using specific examples to show that implementation of the CWA mandate in relation to wetlands has been inconsistent and, most importantly, amounts to an unlawful extension of agency authority. On some level—even to a nonlawyer like myself—these arguments make sense. No doubt states need to continue to develop regulatory programs for shorelands and wetlands, as a handful of states such as Wisconsin—my own home state—have done. Unfortunately, only a minority of states have enacted these programs. In most states, minimum standards set by federal law represent the only layer of protection for wetlands. Some people believe the SCOTUS decision leaves thousands of miles of streams and wetlands unprotected (bit.ly/SackettWetlands).
But Congress has a role in this as well, which is to update the now-dated CWA to reflect what many—from engineers to ordinary citizens—now know about wetland systems that was not clear in 1972 when the CWA was enacted. Not only do wetlands represent vital hubs of biodiversity, but wetlands—the epitome of “green infrastructure”— often are more effective than any other solution we have previously developed in terms of filtering polluted runoff, mitigating soil erosion, slowing flood waters and performing a variety of other services well established by several decades of research—all of which further the goals of the CWA.
The Plaintiff’s Property, Navigability and the ‘Significant Nexus’ Test
The Sackett’s property in Idaho was 300 feet from Priest Lake but contained wetlands and a non-navigable creek that connected to the lake. The local environmental agency asserted jurisdiction on the grounds that the property’s wetlands passed the “significant nexus” test by which wetlands are established if they “significantly” affect the quality of the nearby waterway.
The SCOTUS ruling dismisses the application of this test because it focuses on the type of waters Congress intended to regulate with the CWA when it prohibited the discharge of pollutants into “navigable waters” and “waters of the United States.” The court delved into historical references to conclude that “only those relatively permanent, standing or continuously flowing bodies of water” or “bodies of open water” historically used by ships in interstate commerce are what Congress meant by “waters” in the CWA. Continuing with this line of reasoning, the SCOTUS majority opinion concluded that only wetlands indistinguishable from these waters with obvious surface connections are protected.
SCOTUS Finds Unauthorized Expansion of Agency Power
The other main prong of the SCOTUS ruling focuses on how the law has been interpreted by the EPA and the USACE. According to SCOTUS, field agents have used “free-wheeling” interpretations of the significant nexus test and have based wetland determinations on long-winded and vague wetland guidelines that are a mystery to everyone but the agency representatives making the determinations. According to SCOTUS, property owners can be criminalized for “mundane activities like moving dirt” and are basically at the mercy of agency personnel. According to the court, challenging these agency findings usually ends in costly battles landowners typically lose.
In Need of a New Federal Mandate
As frustrating as these situations must be for landowners—and aside from a few puzzling examples mentioned in the court opinion of puddles being identified as wetlands—I doubt field personnel intentionally set out to aggravate property owners. Wetland delineation guidelines are the work product of scientists who know a great deal about the complexity of wetlands but lack the political and legal know-how to streamline what they know into simple-to-understand (and execute) terms. These well-intentioned, but unfortunately flawed, efforts to protect as many wetlands as possible have led to messy execution in the field, frustrated property owners and ongoing litigation.
Congress should revisit the CWA to continue to protect the health of navigable waters as well as clearly and purposefully protect a subset of isolated wetlands systems. Priority could be given to wetlands with particularly important functionality, already proven effective at minimizing the impact of polluted runoff referenced by the CWA. Congress struggles at times to get things done—and this will be a particularly tricky task—but this is an issue that, once addressed, serves the national interest in multiple ways. We don’t ignore current medical findings in settling on a course of medical treatment; so, too, we shouldn’t ignore the critical and widely recognized roles wetlands serve in other ways. Bipartisan Congressional action is needed to provide direction, clarity and a new baseline of protected “waters” that explicitly includes wetlands.
Editor’s Note: Learn more about this case and its effects in the October 2023 feature article, “Effects of the EPA WOTUS SCOTUS Decision on Engineering,” by Carol Brzozowski.
About Chris Maeder
Chris Maeder, P.E., M.S., CFM, is engineering director at CivilGEO Inc.; email: [email protected].
