Last July, for Bloomberg Law, we asked whether the Supreme Court would finally let Chantell and Michael Sackett build their vacation home after 20 years of waiting. The court has spoken, and the answer is “yes.”
The legal issue before the court was what kinds of wetlands are properly subject to federal regulation under the Clean Water Act.
The May 25 opinion, authored by Justice Samuel Alito and joined by four of the court’s more conservative justices establishes a “continuous surface connection” test from the wetland to a traditionally navigable water.
The court quoted from the opinion by Justice Antonin Scalia in Rapanos and limited wetland regulation to areas with “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right”—that is, traditionally navigable waters—“so that there is no clear demarcation between ‘waters’ and wetlands.”
The court’s approach emphasized property owners’ rights and regulatory certainty. The court seemed broadly skeptical of a need for federal regulation of “mundane activities like moving dirt” even though, arguably, that is the primary activity regulated by the wetlands program.
Nevertheless, the court stopped short of explicitly overturning longstanding precedents like Riverside Bayview, the 1985 case in which the court blessed the regulation of wetlands adjacent to traditionally navigable waters.
Adjacent: Close or In Contact?
Justice Brett Kavanaugh, joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, wrote a concurring opinion parting from the majority on the question of adjacency.
According to Kavanaugh, the majority’s requirement of a “continuous connection” and some sort of blending from wetlands into waters effectively redefined what it meant to be “adjacent.” Proximity used to be enough, goes the argument, but the majority added a new requirement of “adjoining” or an actual, physical connection.
The majority opinion seemed to acknowledge the concurrence in a footnote, observing that a landowner could not evade regulation by illegally constructing an artificial barrier in a wetland to destroy adjacency. However, the court’s majority provided no other exception..
As the dust settles, a few things are clear. First and most obviously, “significant nexus” is dead. All nine justices agreed on abandoning wetlands jurisdiction based on a significant nexus to a traditionally navigable water. This test, articulated by Justice Anthony Kennedy in Rapanos, had become a dominant inquiry in making jurisdictional determinations.
Second, as always seems to be the case, when lawyers make a test to identify wetlands, it generates a seemingly endless series of questions for subject matter experts.
- How “continuous” is a continuous surface connection?
- What if there’s usually a direct connection, but it occasionally dries out depending on seasons or the weather?
- How “clear” does a demarcation have to be to destroy jurisdiction?
- What if there is a barrier, but sometimes it is inundated?
- How often and how completely should that happen before we decide it’s not a barrier for legal purposes?
- What if a barrier erodes due to natural forces and a new connection appears?
And so on.
Finally, perhaps to state the obvious, this is the strictest limit on regulatory authority under the wetland program the court has ever established. The result is that more areas of the US may be developed without what amounts to a federal land use permit. Time will tell how much land will be affected.
The case is Sackett v. EPA, U.S., 21-454, 5/25/23
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Steven Burns is a partner at Balch & Bingham and he advises clients on coal ash, waste and contamination, waterways, wildlife management, air and water quality, and natural resources.
Kenadi Mitchell contributed to this article. Mitchell is a May 2024 Juris Doctorate candidate at the Howard University School of Law and a 2022/2023 Balch & Bingham summer associate.
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