Woe to WOTUS? Wetlands Make a Splash in Recent Court Decision
On May 25, 2023, the Supreme Court1 delivered a decision limiting the Environmental Protection Agency’s (EPA) jurisdiction to enforce the Clean Water Act (CWA) as it relates to wetlands in the United States. The specific case, Sackett v. EPA, involved a couple who were fined for filling in a wetland without a permit on a residential property they purchased in 2003.
The Clean Water Act was amended in 1972 to safeguard the country’s waters, including wetlands, from pollution and degradation. These waters are commonly referred to as Waters of the United States or WOTUS. The Act’s stated objective was to “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”2 Wetlands, traditionally included in the definition of WOTUS, play a vital role in supporting the ecosystem and are home to a diverse range of plant and animal species, including migratory birds, fish, and amphibians. Additionally, they purify water and reduce the impact of floods and storms.
Wetlands are those environmental features that include the following elements:
- Wetlands contain saturated soils within their upper 12 inches, either permanently or seasonally.
- Hydric soils; these are soils that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part.
- Plants that are adapted to saturated soils. These commonly include cattails, bulrushes, sedges, and many leafy herbaceous plants as well as trees tolerant of seasonally ponded or flooded conditions such as willows, red maples, and black gums.
In its most recent court decision, the Supreme Court adopted the plurality view in Rapanos v. United States, 547 U.S. 715, that wetlands are WOTUS only if they 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.” In other words, wetlands that are separated by an earthen berm or other feature from a WOTUS are no longer subject to protections under the CWA, even though their subsurface connections often ensure that they do have an impact on the “chemical, physical, and biological integrity” of nearby WOTUS lacking a “continuous surface connection.” Rapanos v. United States was a 2006 United States Supreme Court ruling on a case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act.3
The Supreme Court’s May 2023 ruling on the CWA and WOTUS could significantly impact wetlands across the United States and have impacts on water quality standards, stormwater regulations, oil spill programs, and other activities that fall under the CWA.
Currently, property developers must still follow a detailed process to determine if their property contains a wetland. This entails conducting a wetland delineation study which includes a site visit by a qualified professional to determine the presence and extent of wetland features. The results must be submitted to the appropriate regulatory agency, typically the EPA or the US Army Corps of Engineers. If the study determines that the property includes a wetland, property developers must obtain a permit from the Army Corps of Engineers before conducting any activities that may impact the wetland. If you suspect that a site that you are developing contains a wetland, Apex can help. To learn more about our natural resources solutions, including wetland delineation, reach out to us today and we will connect you with a subject matter expert who can help with your specific needs.
1 Supreme Court of the United States. May 2023. 21-454 Sackett ET UX. v. Environmental Protection Agency ET Al. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
2 EPA (US Environmental Protection Agency). October 2016. EPA History: Water—The Challenge of the Environment: A Primer on EPA’s Statutory Authority. https://www.epa.gov/archive/epa/aboutepa/epa-history-water-challenge-environment-primer-epas-statutory-authority.html
3 EPA (US Environmental Protection Agency). May 2023. Rapanos v. United States & Carabell v. United States. https://www.epa.gov/wotus/rapanos-v-united-states-carabell-v-united-states
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