The Latest Chapter In The Saga Of The 'Waters Of The United States'

• Published date: 11 July 2023
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Chemicals, Clean Air / Pollution, Water
• Law Firm: Riker Danzig LLP
• Author: Mr Jordan Asch

Reprinted with permission from the June 30, 2023 issue of the New Jersey Law Journal. ' 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The U.S. Supreme Court's recent decision in Sackett v. Environmental Protection Agency interprets the term "waters of the United States" (WOTUS) and federal jurisdiction under the Clean Water Act (CWA) in a way that runs counter to a half-century of administrative guidance and regulatory enforcement.

The test the court sets forth to determine whether wetlands are WOTUS harkens back to historical notions of federal jurisdiction of navigable waters as channels of commerce. The decision will have the present practical effect of deregulating millions of acres of previously protected wetlands throughout the country, though the scope of jurisdiction remains unclear and untested.

In New Jersey, where the Freshwater Wetlands Protection Act (FWPA) regulates WOTUS and waters of the state, including wetlands, the decision will have minimal immediate impact, but there could be a responsive push for legislative or administrative action.

A Brief History of 'Sackett v. EPA'

In 2004, Michael and Chantell Sackett purchased a plot of land near Priest Lake in Idaho on which to build what the Supreme Court describes as a "modest home." They prepared to begin construction by "backfilling their property with dirt and rocks." Then the Environmental Protection Agency (EPA) arrived. It claimed that the Sacketts illegally filled federally protected wetlands, and it issued an administrative order, including penalties of "over $40,000 per day" and a demand that the Sacketts immediately restore those wetlands. In response, the Sacketts sued the EPA under the Administrative Procedure Act (APA), claiming that the alleged wetlands on their property were not WOTUS and did not fall under jurisdiction of the CWA.

The EPA's long-held interpretation of WOTUS, as reflected at 40 CFR Section 230.3(s)(3), (7) (2008), includes all waters that could affect interstate commerce, including "adjacent" wetlands. Per the EPA, WOTUS includes wetlands adjacent to a non-navigable tributary with a significant nexus to a traditional navigable water. A significant nexus is present where a wetland significantly affects the chemical, physical and biological integrity of the navigable water. The Sacketts argued that any wetlands on their property are not WOTUS because there is no aquatic surface connection to Priest...