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Tuesday, May 30, 2023

U.S. Supreme Court Adopts New Test for Wetlands Subject to Clean Water Act

The U.S. Supreme Court is always busy at the end of its term issuing opinions in some of the more high profile cases. Last week, we reported on the Fifth Amendment Takings Clause case where a county had retained surplus foreclosure revenues above and beyond the debt owed to the county. Today, we report on another case where the Court ruled in favor of landowners against government regulation. Sackett v. U.S.

The Sacketts owned property in Idaho on which they planned to build a home. While they were backfilling the property to get it ready for construction, the EPA issued a stop work order because the EPA argued that their backfilling activities violated the Clean Water Act because the Act prohibits discharging pollutants into the "waters of the United States." The Sacketts sued, arguing that the wetlands on their property were not "waters of the United States." The district court and Ninth Circuit Court of Appeals ruled in favor of the EPA, and the Sacketts appealed to the U.S. Supreme Court. 

The U.S. Supreme Court rejected the EPA's argument, and ruled in favor of the Sacketts. First, the Court held that the Clean Water Act applies to waters that constitute "streams, oceans, rivers, and lakes" and only those adjacent wetlands that are "indistinguishable" from these bodies of water. In order to assert jurisdiction over a wetland, the Court said that the EPA has to establish that the wetland constitutes "waters of the United States" and that the wetland has a "continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins." 

The Supreme Court's opinion in Sackett establishes a new, stricter test for determining whether the Clean Water Act applies to a wetland, and wetlands that are entirely separate from traditional bodies of water would no longer qualify. Applying the Court's new test to the wetland on the Sacketts' property, the court determined that the Sacketts' wetland was "distinguishable from any possibly covered waters," and as a result was not covered by the Clean Water Act.

There were a number of concurring opinions in this case, including a concurrence authored by Justice Kavanaugh and joined by Justices Sotomayor, Kagan, and Jackson. They agreed that the Clean Water Act did not apply to the Sacketts' wetlands but would have adopted a more expansive test that would apply the Clean Water Act to wetlands that are either (1) next to a larger body of water or (2) separated from a body of water by a man-made or natural barrier. They also stated that the Court's new test was "sufficiently novel and vague" so as to create regulatory uncertainty.


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