Sackett decision adds clarity to development process, say associations

The Supreme Court has issued an opinion in Sackett vs. the Environmental Protection Agency (EPA), curtailing the agency’s oversight of “adjacent wetlands” to those having a surface connection to Waters of the United States.

“The CWA’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes,’” Justice Samuel Alito writes in his decision.

RELATED: AGC and others challenge definition of ‘Waters of the United States’

Alito notes that the uncertainty surrounding what has fallen under the EPA and Army Corps’ jurisdiction has led to extensive litigation and harsh penalties for violations in the past.

If a homeowner or developer is unsure whether it would be permissible to affect a specific area that may fall under the agencies’ jurisdiction, Alito writes that the EPA recommends seeking a determination from the Army Corps whether an area contains waters covered under the CWA.

That process can set off a long, expensive journey for developers and other property owners with little certainty as to the outcome.

“Even if a property appears dry, application of the guidance in a complicated manual ultimately decides whether it contains wetlands,” Alito writes.

To determine whether development, grading or soil movement would be permissible, a property owner typically has to hire an environmental consultant to conduct a wetlands delineation study, an expensive process, and then wait for the Army Corps to render a determination on the basis of delineation, a process that takes a great deal of time.

If the Army Corps decides the area under consideration does contain waters covered under the CWA, the property owner can challenge the finding in court, says Alito, which adds additional time and expense.

The question that seems to be at the heart of the uncertainty is whether water bodies must be “relatively permanent,” “contiguous” or “bordering” a navigable waterway or merely “neighboring” a navigable waterway. Another question is whether water bodies with a “significant nexus” to navigable water bodies ought to be covered under the CWA.

According to the EPA, a “significant nexus” exists “if the waterbody (alone or in combination) significantly affects the chemical, physical or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.”

Under the Sackett decision, the justices have determined that a water body must be “relatively permanent,” which the EPA states must be “standing, or continuously flowing waters,” meaning that seasonal water bodies, flowing only during a rainy season, for example, would not necessarily be covered under by the CWA following the Sackett decision.

While the White House and EPA have criticized the decision, the Associated General Contractors of America (AGC) and the Associated Builders and Contractors (ABC) have praised it.

“The Supreme Court has provided much-needed clarity on what is and is not a Water of the U.S. The decision will return consistency and sanity to the permitting process. The decision will allow vital infrastructure and development to proceed in a timely manner while still providing strong protections for the actual waters of the U.S.,” AGC CEO Stephen Sandherr says.

He notes that the decision invalidates the EPA’s “significant nexus” test of whether a water body should be covered under the CWA.

“The decision also makes clear that the Biden administration must rewrite its current Waters of the U.S. rule, which relies on the flawed ‘significant nexus’ test that the court roundly dismissed. … Attempting to redefine every wet area in the U.S. as a federal water is clearly not legal,” says Sandherr.

Biden says the “disappointing” decision will hurt the environment and drinking water quality.

“Today’s decision upends the legal framework that has protected America’s waters for decades,” he says. “It also defied the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers and lakes from chemical pollutants that harm the health and wellbeing of children, families and communities.”

EPA Administrator Michael Regan also was unhappy with the Sackett decision.

“I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” he says. “The Biden-Harris Administration has worked to establish a durable definition of ‘Waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing the clarity and certainty that farmers, ranchers and landowners deserve.”

ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck says he disagrees, concluding that the decision will add clarity to the development process.

“By rejecting the ‘significant nexus’ test, the Supreme Court took a critical step toward eliminating the costly regulatory uncertainty that has plagued construction projects around the country for decades without providing meaningful environmental protections for America’s waterways,” he says. “The Supreme Court also signaled that the Biden administration is on the wrong track in developing its [Waters of the United States] final rule, which is a significant step back in establishing unambiguous water quality protections that provide clarity for contractors.”