The meaning of “indistinguishable” and what that says about one man’s North Carolina waterfront property is the focus of litigation that his attorneys are positioning as the next Supreme Court showdown over Clean Water Act wetlands regulation.
Some of the key questions are whether part of Robert D. White’s forested land near the shore of the Pasquotank River is indistinguishable from the river itself, and whether the Biden administration is ignoring the high court’s decision in Sackett with an Environmental Protection Agency regulation conforming its expansive definition of federally-protected waters to the ruling.
Sackett v. EPA drastically cut Clean Water Act jurisdiction over wetlands nationwide nearly a year ago. The Supreme Court ruled that for wetlands to qualify for protections as waters of the US, or WOTUS, they have to be relatively permanent and must be “indistinguishable” from larger navigable waters such as the Pasquotank River because there must be a “continuous surface connection” between the two.
The line between what’s a protected wetland and what’s a river has to be so fuzzy there can be no clear demarcation between the two, the justices said.
On a blustery late April day, one of White’s attorneys, Lars Simonsen, of the Simonsen Law Firm PC in Edenton, N.C., walked through a grove of trees without getting his shoes wet on a part of White’s property that the US Army Corps of Engineers says is a wetland with a continuous surface connection to the river.
Waves from the river lapped up against the shoreline, above which pines and grasses stretch inland toward a fallowed farm field.
“They look distinguishable to me,” Simonsen said. “I think a child would tell you that’s land—it’s not water.”
White’s attorneys say that the Supreme Court intended for “continuous surface connection” to mean a clear water connection—that water from a river must continue to flow over the wetland so it’s hard to tell the difference between the two.
But the Justice Department in a May 7 court filing said the river and the wetlands just need to touch, or “abut” to qualify for federal protections. A physical—not hydrological—connection between larger waters and wetland is all it takes, the department said.
A “continuous surface connection is not the same as a continuous surface water connection, by its terms and in effect,” the Justice Department said in the filing.
‘No Wetlands’ Could Meet Standard
If White and his attorneys succeed in vacating the Biden administration’s wetlands rule, “it would eliminate nearly all wetlands from the protections of the Clean Water Act,” said Mark Sabath, senior attorney with the Southern Environmental Law Center, which is not involved in the litigation.
Vacatur would also show the absurdity of Sackett because “wetlands are virtually always going to be distinguishable from the water bodies that they’re adjacent to,” Sabath said. “This requirement that you just can’t tell the difference between one and the other would mean that virtually no wetlands at all could meet that standard.”
To challenge the rule, White, who owns a local seafood business and a string of properties along the Pasquotank River and another tributary to Albemarle Sound near Elizabeth City, N.C., teamed up with Damien Schiff, the Pacific Legal Foundation lawyer who successfully argued Sackett before the Supreme Court.
“This very well may be the first district court to address squarely the extent to which the post-Sackett rule does or does not cohere with the Sackett ruling,” Schiff said in an interview. “The case does have a strong national precedent-setting opportunity.”
They preemptively sued the federal government in March asking a judge to toss out the rule because of the risk that the EPA and the Army Corps will illegally assert their authority over White’s private property using the conforming WOTUS rule, which they say is overbroad.
The rule ignores the high court’s requirement that wetlands be indistinguishable from navigable waters, White, who spoke through his attorneys, claims in his lawsuit.
The Justice Department said in its filing that White is misreading Sackett, which the agency says stipulates that a wetlands’ indistinguishability is reached though its continuous surface connection with a larger water body. Such a connection is “fact-specific,” the department said.
“The absence of the word ‘indistinguishable’ in the Amended Regulations does not indicate that the adjacent wetlands provisions are invalid,” the filing says.
White’s claims are abstract and meritless, and his request for a preliminary injunction is “extraordinary” because he doesn’t demonstrate any imminent irreparable harm, the Justice Department filing said.
“The mere possibility that the adjacent wetlands provisions of the Amended Regulations could be associated with CWA requirements applying to him is not sufficiently immediate or actual to constitute irreparable harm warranting an injunction against the Amended Regulations’ future, hypothetical application,” the Justice Department said in the filing.
Development Barred
The Justice Department, on behalf of the EPA, sued White in January 2023 to stop him from developing his land and to force him to remove a sea wall, or bulkhead, that he built under a state-issued permit to prevent his property from eroding into Albemarle Sound. The Justice Department claims in its lawsuit that White filled in navigable waters without a federal permit.
“The forested and marsh wetlands at the Site are directly adjacent to traditionally navigable waters and therefore, are waters of the United States,” the Justice Department claims in its lawsuit against White. “Defendant and/or persons acting on his behalf discharged dredged or fill material into these forested and marsh wetlands.”
White also plans to build a sand mine on one of the properties and is considering other kinds of development there, but his lawsuit against the federal government says the risk that the Army Corps of Engineers will launch another civil action against him is too great. The Army Corps issues dredge-and-fill permits under the Clean Water Act and regulates federally protected waters along with the EPA.
The Justice Department’s lawsuit was filed before the Supreme Court ruled in Sackett and the EPA updated its WOTUS rule. But the claims against White haven’t been revised since the ruling.
The Army Corps referred all questions to the Justice Department, which declined to comment.
Schiff said that one of the reasons White’s case is important is that other federal courts have enjoined the EPA’s new conforming WOTUS rule and its more expansive predecessor in 27 states. But North Carolina is among the 23 states in which the new rule is in effect, making it ripe for challenge, he said.
Ultimately, White is just trying to build his business, and he has millions of dollars at risk in his battle against federal regulations, according to the lawsuit.
White is a hard-working citizen who “started out with nothing,” Schiff said. “He started a commercial seafood operation. He obtained all these state permits. He was trying to do the right thing.”
But Sabath said the Clean Water Act exists to protect others from pollution that White may be contributing to.
“They talk about the little guy against the government in these cases,” Sabath said. “What about the little guys who live down the road from the plaintiff who hunt and fish? What about the little guys who want to have clean water that’s safe to drink? Those are the people who these federal regulations are in place to protect.”
The cases are White v. EPA, E.D.N.C., No. 2:24-cv-00013, complaint filed 3/14/24 and United States v. White, E.D.N.C., No. 2:23-cv-00001, complaint filed 1/6/23.
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