Clean Water Act Jurisdiction Over Wetlands
| Jurisdiction | United States,Federal |
| Pages | 22 |
| Citation | Vol. 52 No. 10 Pg. 22 |
| Publication year | 2023 |
ENVIRONMENTAL LAW
BY WILLIAM DAVIS WERT AND MONEKA WORAH
The Implications of Sackett v. EPA
This article examines the US Supreme Court's ruling in Sackett v. Environmental Protection Agency, which reduces the geographic scope of Clean Water Act jurisdiction over many wetlands and other waters in Colorado and nationwide, and discusses how the ruling is likely to affect the regulated community.
Congress enacted the Clean Water Act (CWA or Act) in 1972 to protect the physical, biological, and chemical quality of waters of the United States.[1] The CWA is the primary law protecting our nation's waters and wetlands. Yet the regulatory definition of "waters of the United States," which establishes the scope of the CWA's geographic jurisdiction, has been modified and litigated many times since the CWA's inception, with four Supreme Court rulings and numerous regulatory rulemakings and guidance by successive presidential administrations in that span. In May 2023, the US Supreme Court issued an opinion in Sackett v. Environmental Protection Agency that interpreted "waters of the United States" as it applies to wetlands.[2] The new ruling reduces the geographic scope of CWA jurisdiction and removes federal permitting requirements for activities occurring in many aquatic features in Colorado and nationwide, particularly in the western United States where many wetlands do not directly abut a relatively permanent body of water. By rejecting the "significant nexus" test established in Rapanos v. United States, the Sackett decision likely also eliminates jurisdiction over intermittent and ephemeral streams, which make up the majority of streams in the western United States. The agencies that implement the CWA—the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps)—have already revised their regulatory definition of "waters of the United States" with the intent to conform to the Sackett ruling.[3] This article reviews the CWA's legal framework, discusses case law interpreting the scope of CWA jurisdiction and resulting regulatory responses, and explores the implications of Sackett.
Legal Background-Regulation of "Navigable Waters"
The scope of CWA jurisdiction refers to whether and where permits or other approvals are required under the Act. Under CWA § 402, National Pollutant Discharge Elimination System (NPDES) permits are required for discharging pollutants from point sources into "navigable waters."[4] The EPA administers the NPDES program, although states can obtain EPA approval to administer the program within their borders.[5] In Colorado, the Colorado Department of Public Health and Environment's Water Quality Control Commission (WQCC) administers CWA § 402 permitting.[6]
CWA § 404 requires permits for discharging "dredged or fill material" into "navigable waters."[7] Like § 402, states can assume administration of CWA § 404 permitting.[8] Colorado has not assumed administration of this program, so the Corps regulates CWA § 404 permitting in Colorado.
Finally, CWA § 401 states that "[a]ny applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters" must obtain "certification" from the state that the discharge will comply with the applicable effluent limitations, water quality standards, national standards of performance, and toxic and pretreatment standards of the CWA.[9] The WQCC is the agency responsible for issuing such certifications.[10] Often, a project that requires a federal permit (and CWA § 401 certification) also must comply with other federal laws, such as the National Environmental Policy Act.[11]
CWA §§ 401, 402, and 404 all apply when a pollutant[12] or dredge or fill material is discharged into "navigable waters." The CWA defines "navigable waters" as "the waters of the United States, including the territorial seas."[13]But the CWA does not define "waters of the United States," and the term was "decidedly not a well-known term of art" when Congress enacted the CWA in 1972.[14] Without clarity in the statute, the EPA, the Corps, and the courts were left to interpret Congress's use of that term themselves.[15] As a result, the geographic scope of CWA jurisdiction can expand or contract depending on how agencies and courts interpret the term.
Pre-Sackett Case Law
Shaping CWA Jurisdiction
Before Sackett, three US Supreme Court opinions had interpreted the scope of the CWA's jurisdictional reach under the term "waters of the United States."
First, in 1985 the Court held in United States v. Riverside Bayview Homes, Inc., that the Corps reasonably interpreted the CWA to include within the term "waters of the United States" wetlands that are "adjacent" to other jurisdictional waters.[16] As the Court observed, "the transition from water to solid ground is not necessarily or even typically an abrupt one," and so the Corps must necessarily determine a point where "water ends and land begins."[17]The Court stated that "it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water."[18] However, it was reasonable for the Corps to conclude that "in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem," thus warranting broad jurisdiction over wetlands.[19] If a particular wetland does not have a significant effect on a jurisdictional water, the Court reasoned, then the Corps could acknowledge that by simply issuing a requested permit.[20]
In sum, the Court deferred to the Corps' judgment that the CWA extends to adjacent wetlands.[21] Important to that deference was the Court's observation that after promulgation of the Corps' regulations asserting authority over adjacent wetlands, "Congress acquiesced in the administrative construction."[22] As the Court observed, in 1977 Congress rejected a proposal to explicitly exclude wetlands from jurisdiction.[23]Furthermore, the 1977 amendments to the CWA that were enacted included a new subsection 404(g) that allows states to assume regulation of dredge and fill activities in certain "navigable waters . . . including wetlands adjacent thereto."[24]This enactment, the Court held, showed that Congress meant to include adjacent wetlands within the CWA's coverage.[25]
Next, in 2001 the Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), which addressed the "migratory bird rule"—language in the preamble to the Corps' 1986 regulations that asserted jurisdiction over waters used by protected migratory birds that fly across state lines.[26] The migratory bird rule extended to waters that were isolated and distant from other jurisdictional waters if those waters were used by migratory birds.[27]
The waters at issue in SWANCC were ponds created by gravel mining—that were not adjacent to any bodies of open water—at which migratory birds had been observed.[28] Reflecting on Riverside Bayview, the Court noted that wetlands adjacent to other "waters of the United States" have a "significant nexus" with those other jurisdictional waters.[29] The Court in SWANCC concluded that the CWA's text does not extend to isolated waterbodies that lack this level of connection.[30] Thus, the Court held that the CWA does not extend "to ponds that are not adjacent to open water."[31] Allowing the EPA and the Corps to assert jurisdiction over isolated waters would "result in a significant impingement of the States' traditional and primary power over land and water use."[32] While Riverside Bayview said that the word "navigable" in the CWA has "limited import," the Court in SWANCC clarified that the word still has "at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."[33]
''The fractured Rapanos decision led the agencies to respond with their interpretation of the proper standard to apply moving forward. In 2008, the EPA and the Corps issued a regulatory guidance that directed how the agencies would implement the CWA in light of Rapanos.''
In 2006, the US Supreme Court issued its opinion in Rapanos v. United States, the last US Supreme Court case before Sackett that addressed the CWA's jurisdictional reach.[34]Rapanos considered whether wetlands adjacent to man-made ditches and drains that "eventually" emptied into traditional navigable waters fell within the scope of CWA jurisdiction.[35]The Court in Rapanos remanded the case for application of the proper standard, but there was no majority opinion setting out a test for determining CWA jurisdiction over wetlands.[36]
A four-justice plurality opinion authored by Justice Scalia (joined by Chief Justice Roberts and Justices Thomas and Alito) concluded that wetlands are covered by the CWA if (1) the channel to which the wetland is adjacent is a "relatively permanent body of water connected to traditional navigable waters" and (2) the wetland has a "continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins."[37] The plurality concluded that "waters of the United States" extends neither to "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage or rainfall," nor to wetlands adjacent to such channels.[38]
In his solo concurrence, Justice Kennedy harkened back to SWANCC and concluded that the proper test for determining CWA jurisdiction over wetlands should be whether the wetland has a "significant nexus" to waters that are or could reasonably be made navigable in fact.[39] In Justice Kennedy's view, this "significant nexus" must be...
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