News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 881-6309

Contractors and Owners Will Have an Easier Time Identifying Regulated Wetlands Following U.S. Supreme Court Opinion

Contractors understand how difficult it can be on a technical level to do work in or near wetlands or other environmentally-sensitive areas. Such work is even more difficult due to complex, ever-changing regulations coming from the federal government under the Clean Water Act (“CWA”). The CWA applies to “navigable waters”, which are defined as “the waters of the United States.” To determine whether certain wetlands are “the waters of the United States”, contractors and owners have had to engage in fact-intensive “significant-nexus” determinations that turned on a lengthy list of hydrological and ecological factors found in regulations from the U.S. EPA. Recently, the U.S. Supreme Court struck down the applicability of those regulations and instituted a simpler test to determine whether wetlands on an owner’s property are regulated.

In Sackett v. EPA, the Sacketts purchased a home near a lake in Idaho. In preparation for building a home, they began backfilling their property with dirt and rocks. A few months later, the U.S. EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property contained protected wetlands. The EPA demanded that the Sacketts immediately undertake activities to restore the site and threatened the Sacketts with penalties of over $40,000 per day if they did not comply. According to the EPA, the wetlands on the Sackett’s lot fell under the jurisdiction of the CWA because they were “adjacent to” (i.e., in the same neighborhood as) an unnamed tributary on the other side of a 30-foot road, which fed into a lake. The EPA concluded that the Sackett’s wetlands, when considered together with a large nearby wetland complex, significantly affected the ecology of the lake. Thus, EPA alleged that the Sacketts had illegally dumped soil and gravel into “the waters of the United States.”

The Supreme Court rejected the EPA’s interpretation of the CWA. The Court found that the term “waters” in the CWA “encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” Wetlands are only covered when they are “as a practical matter indistinguishable from waters of the United States, such that it is difficult to determine where the ‘water’ ends and the ‘wetland’ begins. This occurs when the wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”

This decision should give much more certainty to contractors and owners who want to do work in or around wetland areas. As the Court noted, EPA’s position had put contractors and owners in “a precarious position because it is often difficult to determine whether a particular piece of property contains waters of the United States.” This problem often caused Owners to seek a written opinion from the Army Corps of Engineers, which found that wetlands fell under CWA jurisdiction approximately 75% of the time. After Sackett, contractors and owners should be able to make quicker and less costly determinations of whether their wetlands are covered by the CWA.

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