Recently, both the Supreme Court and the EPA focused their attention on the rules and definitions surrounding the Clean Water Act and its application to wetlands, agriculture, and development. On December 30, 2022, the EPA published the new rules defining what it considers to be a “Water of the United States” under the Clean Water Act. The rule will be finalized on March 20, 2023. On October 3, 2022, the U.S. Supreme Court held oral arguments for Sackett v. EPA – the latest confrontation on the Clean Water Act’s applicability to wetlands. Sackett concerns a family who purchased a residential lot across the street from Priest Lake in Idaho. After purchasing the property in 2004, the Sacketts began placing sand and gravel on the lot in preparation to build a home. However, the EPA claimed the lot contained wetlands that qualify as “navigable waters” regulated by the Act and ordered the removal of the sand and gravel and restoration of the property to its natural state. The Sacketts’ case asks the Court to determine what is the correct test for determining whether wetlands are “waters of the United States” under the Clean Water Act. A decision from the Court is expected to be released in June 2023.
The Clean Water Act requires a permit from the U.S. Army Corps of Engineers for any work that results in “the discharge of fill materials into navigable waters.” The terms “navigable waters” is defined as “Waters of the United States” or “WOTUS”. WOTUS include traditionally navigable waterways, like rivers, streams, and, lakes, tributaries to those navigable waterways, and wetlands adjacent to those waterways and tributaries. Sackett focuses on what does it mean for a wetland to be “adjacent to” a tributary or navigable waterway. The December 30, 2022 rule is the EPA’s response to this question. The rules states the Clean Water Act applies to a wetland that either has a continuous surface connection or has a “significant nexus” to a navigable waterway. The Clean Water Act applies to wetlands under this rule if they alone, or in combination with other similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of a navigable waterway. Despite the EPA’s new rule, the rule does not constrict how the Supreme Court may decide the Sackett case.
At oral arguments the Sacketts argued the Court should adopt a form of the Continuous Surface Connection test, meaning the Clean Water Act would only apply to wetlands with a continuous surface connection that makes it difficult to determine where the waterway ends and the wetlands begin. The EPA advocated for the Significant Nexus test. Based on the justices’ lines of questioning, it is likely the Court will try to opine a clearer, more predictable test for the EPA and individuals to follow. Justices Thomas, Alito, and Gorsuch seemed to favor the Continuous Surface Connection test. Justices Sotomayor, Kagan, and Jackson appeared to favor defining “adjacent to” more broadly than the Continuous Surface Connection test would allow. All the justices appeared to be in agreement that the Clean Water Act is murky as to how to determine if wetlands are “adjacent to” regulated waters.
There are likely three potential outcomes when the Court issues its decision. First, the Court could adopt the Continuous Surface Connection test and the Sacketts will prevail. Second, the Court could adopt the Significant Nexus test and the Sacketts will likely lose. Finally, the Court could adopt an entirely new test. Depending on how the Court defines when a wetland is “adjacent to” waterway, the EPA’s December 2022 rule may be scrapped forcing a new rulemaking process to begin.
The Court’s interpretation of the Clean Water Act in conjunction with the regulations adopted by the Army Corps of Engineers have the potential to impact agricultural drainage practices. Currently, typical practices for an established farm, like plowing cultivating, repairing existing agricultural drainage systems, do not require a permit. The regulations require a permit for any new use of water that reduces or impairs the flow or circulation of regulated water. Any regulated activity that coverts a regulated wetland into upland would require permitting. The Army Corps of Engineers will not grant a permit for the discharge of fill material if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded. The applicant seeking a permit must show that they took steps to avoid impacts to wetlands, minimize potential impacts, and provide compensation for all remaining unavoidable impacts. The type and amount of compensation depends on the amount and location of the proposed work.
There are steps landowners may take to mitigate the risk of violating the Clean Water Act based on what work is done and how drainage tile is laid. Despite the uncertainty, there are steps that landowners and land improvement contractors can take to reduce the risk. Consult with an attorney knowledgeable on these issues.
