In Sackett v. EPA, the Supreme Court returned to a question that has dogged them for decades; what constitutes “waters of the United States,” and which wetlands are considered “adjacent” to such waters for purposes of federal wetland permitting jurisdiction? In a win for the regulated community on May 25, 2023, the Sackett decision substantially narrows the universe of wetlands subject to protection under the Clean Water Act (CWA).
Prior to the Sackett decision, the EPA and the United States Army Corps of Engineers considered wetlands to be “adjacent” to “waters of the United States” if the wetlands had a “significant nexus” to such waters. These agencies defined “waters of the United States” broadly to include many types of intra-state waters that may not have been “navigable” in the traditional sense. The concept of a “significant nexus” was also very broad and could include distant wetlands that may not have any surface water connection to these waters. Thus, wetlands near an area of a creek or other local surface water feature were subject to protection under the CWA.
The Sackett decision rejects the “significant nexus” test of adjacency in favor of a much narrower two-part test:
- Is the body of water adjacent to the wetland a water of the U.S., i.e. one that is relatively permanent and connected to a traditional interstate navigable water?
- Does the wetland have a continuous surface connection with that water, such that drawing a line of demarcation between them is difficult? If the wetland maintains such a continuous surface connection with a traditionally navigable water of the U.S. or a direct tributary, then it falls under the CWA. If it does not, it is not regulated, and no federal permits are required to fill it.
Sackett does leave some issues open to further regulatory interpretation. For example, the concept of what a “relatively permanent” water is may need further clarification. But the decision greatly restricts the scope of federal wetland jurisdiction from where it has been over the past few decades.
The Sackett decision will have a limited impact on Michigan wetland permitting. Under Part 303 of the Natural Resources and Environmental Protection Act, waters of the U.S. are regulated by the state, but these are just one category of covered waters, which also include wetlands within 1,000 feet of the Great Lakes or Lake St. Clair; within 500 feet of inland lakes, rivers, ponds or streams; wetlands more than five acres in size and other categories. A continuous surface connection is not necessary. The decision should, however, restrict the number of wetland permit applications that are reviewed by the EPA for consistency with the federal program, limiting the EPA’s opportunity to comment on or object to issuance of Part 303 permits. The decision should also reduce the EPA’s role in resolving violations of Part 303.
In addition, Michigan modified several agricultural exemptions included in Part 303 in 2013 at the directive of the EPA to make them more restrictive and consistent with the EPA’s interpretation of the CWA. At that time, the legislature also added language to Part 303 suggesting that these modified exemptions would apply only to waters of the U.S. as defined by the courts. Now that the definition of U.S. waters has narrowed in Sackett, the status of these modified exemptions is unclear.
For more information on these changes to federal wetlands regulation and how they may affect you or your property, please contact Dennis Donohue, Kurt Brauer or your Warner Resources, Energy and Environmental Law Practice Group attorney.
Warner Legal Consultant C.J. Biggs contributed to this eAlert.