Sackett, One Year Later

Originally published by the Mississippi Manufacturer’s Association

After last year’s Supreme Court's decision in Sackett v. Environmental Protection Agency, there remains confusion regarding how the ruling affects economic development projects such as residential and commercial building, infrastructure projects, and agricultural activities. On its face, Sackett provided a new, clearer test on what compromises “Waters of the United States,” (WOTUS) and what wetlands are therefore subject to regulation under the Clean Water Act (CWA). This test, as articulated by the Supreme Court, states that only those wetlands with a continuous surface connection to WOTUS are subject to federal jurisdiction.   

In the time since the Court clarified the definition of “WOTUS,” the Environmental Protection Agency (“EPA”), the Army Corps of Engineers (“Corps”), and some courts’ treatment of the ruling requires us to revisit Sackett and ask whether the new test established was really so clear.  

Even with the clarity the Supreme Court attempted to provide, there remain concerns about vagueness and uncertainty in light of the CWA’s civil and criminal penalties, which can be significant. On its face, the new test should provide more clarity, fewer jurisdictional wetlands, and therefore fewer permits. Unfortunately, there is concern that the Corps’ and EPA’s application of the new test leaves many just as confused as they were before Sackett and could further allow the Corps and EPA to slowly expand WOTUS beyond the scope of the Court’s decision in Sackett. Evolving guidance and differences in regional application of the new test continues to create uncertainty for navigating the complex regulatory environment surrounding what wetlands are federally regulated, prompting a need for further legal clarification and adaptation.

Understanding how regulatory agencies are using this test in day-to-day practice is essential for property owners to ensure compliance, manage costs, mitigate risks, make informed decisions, and avoid significant penalties.

In this article, we’ll examine how we got to this point, applications of the Sackett Rule in the past year, and why we expect to move forward with increasing grey areas that could produce not only increased litigation, but also uncertainty as to what is a federally regulated wetland.

Sackett v. EPA and the Reach of the Clean Water Act

Sackett addressed concerns about the outer reaches of the Clean Water Act (“CWA”), which regulates activities associated with WOTUS. The EPA and the Corps are jointly responsible for enforcing the CWA. However, their enforcement only extends to federally jurisdictional waters. 

In Sackett, the facts are straightforward; Sackett backfilled a lot in Idaho with dirt to build a house. EPA informed Sackett that the property contained jurisdictional wetlands and that the fill violated the CWA. EPA argued that wetlands on the Sackett property were “adjacent” to an “unnamed tributary” on the other side of a 30-foot road and that a “significant nexus” existing between the property and a large nearby wetland. You may think that it seems like a stretch that Idaho homeowners faced serious penalties because their property was close enough to an unnamed tributary that was in turn close enough to a nearby wetland and was therefore “waters of the United States.” If so, the Supreme Court agreed with you.

The Court found that the “wetlands” on the Sackett property were beyond the jurisdiction of the CWA and provided a two part test on when a federal agency has jurisdiction:

1. That an “adjacent” waterbody qualifies as “waters of the United States (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and, 

2. “that the wetland has a continuous surface water connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

The Court clarified that wetlands entirely separate from traditional bodies of water are not jurisdictional and the filling of such wetlands is not subject to federal regulation. 

As far as Supreme Court rulings go, this is (or you think would be) a fairly clear test. Unless a wetland is “as a practical matter indistinguishable from waters of the United States” because it has a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins,” it is not subject to federal jurisdiction.  Because the Sacketts’ “wetlands” had no such connection, they won.

Application of the Sackett Rule in the Past Year

Many believe that the Corps and EPA are acting inconsistently with Sackett. In a September 2023 rule, those agencies stated that they will assert jurisdiction if there is a “discrete” continuous connection to WOTUS even if that connection is through ditches, pipes, and culverts.   That rule further provides that water does not even have to be “continuously present” for a wetland to be regulated, even though admitting that there “was not a reasoned basis” for EPA “to establish such a regulatory bright line.”  However, additional guidance in 2024 provides that “wetlands without a continuous surface water connection are no longer covered. . ..” It is unclear exactly what will count as a “continuous surface connection” and what will not. Rather than provide clarity for anyone attempting to develop property that may contain regulated wetlands, the Corps and EPA have once again introduced ambiguity and uncertainty into the development process. 

To further stray from the Corps’ and EPA’s interpretation, the Fifth Circuit Court of Appeals, in Lewis v. United States, applied the Sackett rule finding that the Corps did not have CWA jurisdiction on a pine timber plantation proposed to be developed because there was “no continuous surface connection between any plausible wetlands on the Lewis tracts and a relatively permanent body of water. . ..” In fact, the “nearest relatively permanent body of water” was “miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary.” The court found that it was not difficult at all “to determine where the ‘water’ ends and any ‘wetlands’ on the Lewis’s property begin,” and that it was clear that the Corps had no jurisdiction over the Lewis property.

Moving Forward with Sackett

If you are thinking “why aren’t the Corps and EPA following the Sackett decision,” you are not alone. Just this summer, during a hearing of the Transportation and Infrastructure Subcommittee on Water Resources and the Environment, members of the U.S. House of Representatives raised complaints about the Biden administration’s failure to implement key provisions under Sackett and such failure is creating confusion to the regulated public. According to the Corps and EPA, they are; others clearly disagree. 

Without clear definitions of key terms from the Sackett decision, there will be grey areas that could produce not only increased litigation but also uncertainty as to what is a regulated wetland. Additional guidance that is consistent with Sackett could decrease uncertainty and confusion but could also lead to the same cycle of litigation that courts have been through since the inception of the CWA – agencies increasing federal jurisdiction, to courts limiting federal jurisdiction, back to agencies stretching federal jurisdiction. 

Because the CWA imposes severe penalties for violations, as exemplified in the Sackett itself, understanding what Sackett means and ensuring that EPA and the Corps comply with that decision are paramount. When it comes to making determinations as to whether there are regulated wetlands on a property, the Corps and EPA should be strictly adhering to Sackett and not sticking to previous routine practices. Property owners, developers, and other interested parties should push back on any attempts made by federal regulators to exert regulatory authority over areas that are no longer jurisdictional wetlands.   The public needs further clarification and guidance moving forward, especially in regard to what constitutes “continuous surface water connections,” whether it be from the courts applying Sackett or the agencies enforcing the CWA. Whatever that guidance is, if and when it comes, it will certainly be challenged.