Wetlands Face Challenges on Multiple Fronts After Sackett Ruling

Ongoing litigation promises to further alter the scope of Clean Water Act protections for wetlands in the wake of the Supreme Court’s ruling in Sackett v. EPA nearly 11 months ago, water lawyers say.

The ruling curtailed federal protections of wetlands and some waterways, fueling three major federal court cases filed by a total of 27 states challenging the Biden administration’s rule defining protected wetlands as waters of the US, or WOTUS. Another lawsuit filed by the attorneys that argued Sackett is poised to further chip away at wetlands protections.

Sackett changed how people think of what a wetland is, and its true impact remains unclear, said Steven Miano, shareholder at Hangley Aronchick Segal Pudlin & Schiller PC in Philadelphia.

Federal protections now hinge on whether wetlands are “indistinguishable” from navigable waters such as the Chesapeake Bay or Potomac River—a major change to the EPA’s long-accepted concept that jeopardizes broad swaths of wetlands across the country, Miano said.

“That, I think in the minds of a lot of people I’ve spoken to, is really a fundamental difference in the way you think about wetlands and the values of wetlands,” Miano said. “It depends on which estimate you believe, but you know 50 to 80 percent of what used to be covered is no longer covered under the Clean Water Act at the federal level.”

Many construction projects affecting wetlands that once required federal permits are now left only to states to regulate, and the ultimate toll is still unknown, he said.

In the Supreme Court’s Sackett ruling last May, the justices effectively eliminated the federal government’s role in regulating some wetlands nationwide, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated only by states. The ruling eliminated the legal basis, known as the “significant nexus” test, for the Biden administration’s January 2023 wide-reaching WOTUS definition.

The Environmental Protection Agency responded to the ruling by conforming the definition to the justices’ notion of wetlands that can be protected under the Clean Water Act: They must be relatively permanent with a continuous surface connection to and “indistinguishable” from navigable waters.

Disputing Extent of Federal Jurisdiction

Damien Schiff, the Pacific Legal Foundation attorney who argued Sackett before the Supreme Court, said that the EPA and the Army Corps are resisting full implementation of the ruling.

The Army Corps of Engineers is responsible for determining whether a wetland is protected under the Clean Water Act when someone seeks a federal dredge-and-fill permit for a project.

The Biden administration is sidestepping the plain language of the ruling by taking “the position that a continuous surface connection is what itself makes a wetland indistinguishable from the adjacent water,” Schiff said in an interview. “The agencies and the DOJ have taken the position that the continuous connection needn’t be aquatic.”

The Army Corps referred all questions to the EPA, which didn’t respond to a request for comment.

Schiff is representing a North Carolina landowner challenging the agencies’ interpretation of those Sackett terms in White v. EPA, filed March 14 in the US District Court for the Eastern District of North Carolina.

The lawsuit claims that the post-Sackett rule ignores the Supreme Court’s requirement for wetlands to be indistinguishable from navigable waters and violates Sackett because it asserts overbroad authority over private land.

Wetlands that have any separation at all from navigable rivers shouldn’t be protected under the Clean Water Act, the lawsuit argues.

The plaintiff in the case is Robert D. White, who owns properties adjacent to rivers near Elizabeth City, N.C., and was accused by the Army Corps of discharging into navigable waters. White, who plans to open a sand mine on one of his parcels, claims that the post-Sackett WOTUS rule is too vague and broad to be able to easily determine which wetlands on his property are federally protected, prohibiting him from making long-term decisions about how to use his land.

One of the goals of the lawsuit is to obtain a preliminary injunction against enforcement of the rule, which other litigation has not yet been able to achieve, Schiff said.

Trio of State Challenges

The legal landscape of WOTUS beyond White is complex. Every White House administration over the last 20 years has tried to create its own WOTUS definition, resulting in a cascade of litigation.

Today, the Biden administration’s post-Sackett WOTUS rule is in effect in 23 states. Twenty-seven states are subject to a WOTUS definition that was effective before 2015 but tweaked to account for Sackett as those states challenge Biden’s pre- and post-Sackett WOTUS rules in three federal court cases.

Twenty-four states are challenging Biden’s post-Sackett WOTUS rule in West Virginia v. EPA. They say they worry that EPA and Army Corps are ignoring Sackett and other district court rulings, possibly forcing landowners to pay “crushing fines” for noncompliance. The states, which filed a motion for summary judgment in February, accuse the EPA and Army Corps of violating the Clean Water Act and Administrative Procedure Act by failing to fully account for Sackett.

In Texas v. EPA, Texas and Idaho argue that the post-Sackett rule is illegal because it usurps state sovereignty, asserts federal authority over non-navigable waters, and that the EPA failed to allow states to comment on the rule by immediately finalizing it without a notice-and-comment period, violating the APA. The states argue that only navigable waters can be protected under the CWA.

The plaintiffs in February filed a motion for summary judgment, followed by the Biden administration’s motion for summary judgment April 2, and another motion for summary judgment by Bayou City Waterkeeper, a movant in the case, on April 16.

The 27th state, Kentucky, appealed a federal district court’s April 2023 dismissal of its challenge to Biden’s pre-Sackett WOTUS definition. That case, Kentucky v. EPA, is pending before the US Court of Appeals for the Sixth Circuit.