On May 25, the US Supreme Court issued a decision in the Sackett v. EPA case, a 14-year-long lawsuit over property rights and the legality of building on federally protected wetlands. All nine Justices agreed that the wetlands on the Sackett’s property should not fall under the jurisdiction of (CWA), permitting the Idaho couple to continue with construction of their new residence.

But there were substantial differences in the approach to the scope of the decision.

Justice Alito wrote the opinion for the five justice majority, which included Justices Barrett, Gorsuch, Roberts, and Thomas (note that Justices Thomas and Gorsuch prepared a separate concurring opinion).

Justice Kagan filed an opinion concurring with the judgement in favor of the Sacketts, but offered a more inclusive approach to the question of what wetlands should fall under federal jurisdiction. Justice Kagan was joined by Justices Jackson, Sotomayor, and Kavanaugh.

Background

The Sackett’s legal battle began in 2007, when they started earthmoving activities to prepare a 0.63-acre lot they owned near Priest Lake, Oregon.

The family received a notice from the Environmental Protection Agency (EPA) to stop work to avoid impacts to wetlands on the property. The EPA based their jurisdictional decision on their conclusion that the wetlands on the Sackett’s lot drained into a non-navigable creek that then led to Priest Lake.

The Sacketts challenged EPA’s decision, and the various cases worked their way through the federal courts, ending with the 9th Circuit issuing an opinion that there existed a “significant nexus” between the wetland on the Sackett’s property and Priest Lake. On May 25, the Supreme Court overturned that decision and essentially voided the “significant nexus test.”

Summary of the Decision

Justice Alito ruled that courts should apply a more stringent test, outlined by four justices (Alito, Chief Roberts, Scalia, and Thomas) in a previous case (Rapanos v. United States). Alito relied heavily on Justice Scalia’s opinion, in which he wrote that the Clean Water Act (CWA) applies to a particular wetland only if it blends or flows into a neighboring water that is a channel used in interstate commerce — generally referred to as a Traditionally Navigable Water (TNW).

The majority wrote that the text of the CWA defined “Waters of the United States” (WOTUS) as “geographical features” ordinarily described as “streams, oceans, rivers, and lakes.” The statute also clearly states that WOTUS includes wetlands that are “adjacent” to another WOTUS.

For decades, this meant that wetlands could fall under Section 404 even though they were separated from a TNW, provided there was some direct connection to that TNW. Thus, a wetland that was connected by even an ephemeral stream, through the greater stream network, eventually emptying into a TNW, fell under federal regulation.

Justice Alito, in adopting Scalia’s strict definition of adjacency from the Rapanos decision, wrote that wetlands can only fall under federal regulation if they possess a direct, relatively permanent connection to another WOTUS. Still, Alito seemed to indicate that to be adjacent, a wetland must be “indistinguishably” part of a stream, ocean, river, or lake.

Potential Effects

The US Army Corps of Engineers (Corps) and the EPA are expected to revise the WOTUS Rule once again. The rule recently enacted by the Biden Administration does not incorporate Justice Alito’s new, much narrower definition. The previous definition of WOTUS, one that has been in practice since 1986, also will not meet the new test in Alito’s decision.

It is clear so far that a wetland that is congruent with a stream or other regulated body of water will still fall under federal jurisdiction. It seems clear that a wetland that is adjacent to relatively permanent streams (intermittent or perennial streams) will also still be regulated, but that ephemeral streams would likely not be (ephemeral streams are not jurisdictional under the 1986 guidance). Furthermore, a wetland that is connected by a relatively permanent stream to a TNW should still be regulated.

The decision will most likely expand the definition of “isolated wetlands,” by removing from jurisdiction those wetlands that previously exhibited a “significant nexus” to another WOTUS. The attached diagram shows Atlas’ interpretation of the decision based on information we have to date.

Note that state wetland regulations still apply until changed by the individual state administrations or legislatures.

The index below lists the WOTUS definition that is currently applicable in each state. This will likely change as the Corps and EPA establish new rules and guidance following the Sackett Decision.

Author:
Jim Kooser
Atlas Senior Ecologist,
Wetlands and Natural Resources Management

This is what is sitting in our wetlands! Beautiful green space for us to cherish. The lush greenery helps to clean the air, gives natural purifiers for our water, and provides a natural habitat for many species of amphibians, reptiles, birds, and mammals which are essential to our ecosystem. But this is what lives there.

Last month, I joined a team of my colleagues from Atlas along with other volunteers in a clean-up effort for the Great Gwinnett Wetlands. We cleaned up trash from the floodplain and wetlands bordering a section of Sweetwater Creek. There were times that I had to pause to just look at and touch the variety of plants growing, the water lilies that thrive and the colors that are so vibrant and alive there. It was simply breathtaking beauty.

Our work area was located on the right bank of Sweetwater Creek on the property of Bethesda Park, but cut-off from the Park by the creek itself. The area has a sewer easement running through it, which provided excellent access to the wetlands, and is surrounded by residential development. In just three hours, a crew of 17 volunteers cleaned approximately eight acres of wetlands along a 2,300ft. section of the creek. In the end, an estimated 1,800 pounds of trash were collected in 94 bags, 15 tires, a mattress, and water heater, and a bicycle.

As I walked along picking up garbage, there were two things that struck me. How does all this trash end up in these wetlands? Second, there are so many simple things that can be done to keep these life-giving spaces safe, healthy and beautiful for generations to come.

To answer the first question – trash thrown in parking lots, roadways, ball fields, restaurants, on the streets gets swept up with floodwaters and back into rivers and creeks, and then into these wetland areas. Wetlands across the US provide many important services to the environment and to the public. They offer critical habitats for fish, waterfowl, and other wildlife; they purify polluted waters; and they help check the destructive power of floods and storms. Wetlands act as natural water purifiers, filtering sediment and absorbing many pollutants in surface waters. In some wetland systems, this cleansing function also enhances the quality of groundwater supplies. I am fascinated by the fact that wetlands present along rivers and streams absorb energy and store water during storms, which reduces downstream flood damage and lessens the risk of flash floods. The slow release of this stored water over time can help keep streams flowing during periods of drought. As a foodie, I love that wetlands provide food, cover, spawning, and nursery grounds for freshwater and marine life including trout, striped bass, pike, sunfish, crappie, crab, and shrimp. And, they are particularly vital to many migratory bird species. Nearly 7000 plant species live in U.S. wetlands, many of which can only survive in these wet environments.*

Wetlands are a productive and valuable resource that is worthy of protection and restoration. But all this beauty and value to our environment is at risk – simply because we are careless about how we dispose of our trash. And talk about TRASH! There were mattresses, a water heater, tires, children’s toys, soccer balls, and tennis balls! But the overwhelming item discarded in this wetland area was plastic bottles.

Just google plastic bottles and the impact on the environment, and you can spend hours reading about the ravaging effects that it has on the ocean, marine life, wetlands, the ecosystem, and it goes on and on. I am not an environmental scientist, nor do I claim to be an expert on the impact of BPA or plastic on our bodies, but what I saw and picked up was enough for me to make a change.

Driving home from that cleanup effort, my overriding thought was, I HAVE TO DO BETTER! Here’s what I plan to do moving forward.

First, I must apologize to my daughter who has consistently encouraged me to stop buying plastic water bottles at home. I have stopped! And here are some other simple things that I am doing:

1. Carry an eco-friendly reusable water bottle
2. Reduce my use of plastics, and if I can’t, then reuse and recycle all plastic
3. Use the water filter at home—I already have one in my refrigerator
4. Working with my office to implement a water purifying system
5. Carry reusable grocery bags to the store
6. Skip the straw and lid at the restaurant
7. Get educated, volunteer, and contribute in any other way that I can.

And I hope you will consider doing just one, or however many more meaningful steps you can take to protect our wetlands…our environment.

As we were cleaning up, John Butler, Gwinnett County’s Water Resources Outreach Manager, mentioned that this type of event is not just about getting all the trash from the Wetland area. A trash cleanup helps, but it is only a short-term solution. This effort is about raising the awareness of the volunteers so they can talk about it to someone else, and hopefully influence change.

I am certainly more aware, and I will work to make a change. I hope you will too.

Author:

Karlene Baron | Director of Communications | Atlas