Wetlands And WOTUS: Implications Of Sackett V. EPA

• Published date: 12 June 2023
• Subject Matter: Environment, Government, Public Sector, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Waste Management, Water
• Law Firm: WilmerHale
• Author: Ms Peggy Otum, Daniel S. Volchok, H. David Gold, Shannon Morrissey and Kate Thoreson

On May 25, 2023, the United States Supreme Court held that the term "waters of the United States" ("WOTUS")'as used in the federal Clean Water Act ("CWA"), 33 U.S.C. ' 1362(7)'means "streams, oceans, rivers, and lakes" and wetlands that are so adjacent as to be "indistinguishable" from those waters due to a continuous surface connection.¹ This means that enforcement of the CWA by the United States Environmental Protection Agency ("EPA") and by private plaintiffs is limited to the waters and wetlands so described'a notable narrowing of the Court's prior interpretation.

Background

The CWA regulates discharges to "navigable waters," which the statute defines as "waters of the United States, including the territorial seas." 33 U.S.C. ' 1362(7). The scope of the terms "navigable waters" and "waters of the United States" is relevant under several CWA programs, including those statutory schemes governing discharges of dredged or fill material under Section 404, administered jointly by the United States Army Corps of Engineers (the "Corps") and EPA; discharges of pollutants from "point sources" under Section 402, delegated to most states for permitting under the National Pollution Discharge Elimination System; and spills of oil and hazardous substances under Section 311. Historically, EPA and the Corps have defined WOTUS to mean all waters that "could affect interstate or foreign commerce" and adjacent wetlands as wetlands "bordering, contiguous [to], or neighboring" WOTUS.²

In this long-lived case,³ Michael and Chantell Sackett bought property near Priest Lake, Idaho, in 2004 and started backfilling it with dirt and rocks to build a home on the property.⁴ EPA sent the Sacketts a compliance order alleging violations of the CWA based on the presence of protected wetlands⁵'which in this case meant wetlands adjacent to an "unnamed tributary" feeding into a non-navigable creek that feeds into Priest Lake'and ordered them to immediately restore the wetlands. The Sacketts then sued EPA under the Administrative Procedure Act, and the case ultimately made its way to the Supreme Court over a span of 15 years.⁶

Opinion

In a prior Supreme Court decision, Rapanos v. United States, 547 U.S. 715 (2006), a four-justice plurality concluded that the CWA only applied to "certain relatively permanent bodies of water connected to traditional interstate navigable waters" and "wetlands with such a close physical connection to those waters that they were "as a practical matter...