U.S. Supreme Court Decisions Regarding Wetlands
Since its inception in the 1970's, the wetlands regulatory program has sparked hundreds of lawsuits. Federal court decisions are the driving force in wetlands law. Some of these lawsuits raised fundamental questions affecting the U.S. Constitution and as a result there have been four major wetlands cases in the U. S. Supreme Court since 2001.
SWANCC decision (wikipedia link)
On January 9, 2001, the U.S. Supreme Court issued a decision in the case of Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers. The Supreme Court ruled that isolated wetlands and other non-navigable, isolated, intrastate waters are not “waters of the United States” and therefore are not subject to federal regulation under Section 404 of the Clean Water Act. The SWANCC decision removed Clean Water Act jurisdiction from isolated wetlands and other isolated, intrastate waters. Most of the wetlands in the greater Houston area are isolated wetlands.
On January 9, 2001, the U.S. Supreme Court issued a decision in the case of Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers. The Supreme Court ruled that isolated wetlands and other non-navigable, isolated, intrastate waters are not “waters of the United States” and therefore are not subject to federal regulation under Section 404 of the Clean Water Act. The SWANCC decision removed Clean Water Act jurisdiction from isolated wetlands and other isolated, intrastate waters. Most of the wetlands in the greater Houston area are isolated wetlands.
Rapanos decision (wikipedia link)
On June 19, 2006, The U.S. Supreme Court issued the Rapanos decision. This ruling imposed three major changes on the federal wetlands regulatory program which had the effect of reducing the overall reach of Clean Water Act jurisdiction.
Rapanos: 1) redefined “waters of the United States" 2) required the Corps to determine a “significant nexus” on a case-by-case basis before asserting jurisdiction over isolated wetlands that are not adjacent to “relatively permanent waters” 3) clarified when wetlands are considered “adjacent” and therefore subject to Clean Water Act jurisdiction.
1) Waters of the United States is a legal term that describes the types of water bodies which are regulated under the Clean Water Act (and the Oil Pollution Act). Prior to Rapanos, federal agencies had revised and expanded this definition in an effort to recapture federal jurisdiction over isolated wetlands, ditches, and streams that had been deregulated under SWANCC. The Rapanos decision restricted the definition of "waters of the United States" to only those waters that are relatively permanent, standing, or continuously flowing, and “forming geographic features” such as “oceans, rivers, streams, and lakes.” Ditches and drainage channels in which water flows intermittently or ephemerally are no longer regulated as “waters of the United States.”
2) Significant Nexus: If the Corps of Engineers wishes to assert jurisdiction over isolated wetlands that are not adjacent to relatively permanent waters, then it must establish a “significant nexus” on a case-by-case basis. "Significant nexus" is a legal term for a large and substantial chemical, biological, and physical impact between isolated wetlands and downstream "Traditional Navigable Waters." Rapanos stipulated that a significant nexus must be substantial and not speculative. However, the Supreme Court did not define nor further clarify the meaning of this term. Instead, the Court instructed the agencies to promulgate a regulatory definition of significant nexus, but this never happened.
The Rapanos decision affirmed that a significant nexus should be visually obvious and intuitively apparent. The Court gave flooding and pollution as examples, saying it should significantly affect current levels of flooding or pollution, or otherwise significantly affect the chemical, biological, and physical integrity of downstream Traditional Navigable Waters. Most isolated wetlands in the greater Houston area are relatively small and do not have the capacity to significantly carry, reduce, or affect the overall amount of nutrients, pollutants, and flood waters that enter downstream Traditional Navigable Waters.
Following the Rapanos decision, the Corps and EPA have issued various unofficial guidance documents that include proposed definitions and procedures for evaluating significant nexus, but these agencies have not yet promulgated an official regulatory definition so this term remains legally undefined. Eventually “significant nexus” may be properly codified into federal regulations, but at this time there is no regulatory definition, nor are there any official methods and procedures for determining significant nexus. "Significant nexus" should not be used to assert Clean Water Act jurisdiction at this time.
3) Adjacency: Wetlands must have a permanent broad, continuous, and abutting surface water connection to relatively permanent “waters of the United States” in order to meet the Rapanos definition of “adjacency” and thereby establish Clean Water Act jurisdiction. For any wetlands to be considered “adjacent” and jurisdictional, there must be a continuous surface connection between water in the wetlands and water in “relatively permanent waters” (which are waters of the United States).
Adjacency is defined under the Supreme Court’s Rapanos plurality opinion as follows:
“… only those wetlands with 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 the two, are “adjacent” to such waters and covered by the Act…”
The type of surface-water connection that is necessary to establish adjacency must be permanent and broad such that there is no clear boundary or physical demarcation between water in the wetlands and water in the adjoining 'relatively permanent waters.'
Intermittent and ephemeral streams are not 'relatively permanent waters' and do not provide a continuous surface-water connection for sufficient duration under normal conditions to establish “adjacency.” Likewise, directional stormwater sheet-flow, sub-surface ground water, and flood events that may occur once every 100 years, are not sufficient hydrological connections to establish “adjacency” under the Rapanos definition of this term.
Wetlands that directly abut and have a broad, continuous and permanent surface-water connection to relatively permanent streams and creeks which flow year-round, satisfy the Rapanos definition of “adjacent” and therefore would be subject to jurisdiction under Section 404 of the Clean Water Act.
The Rapanos decision benefits landowners because it reduced Clean Water Act jurisdiction over drainage ditches, intermittent and ephemeral streams, and narrowly defined when wetlands are considered "adjacent" and therefore jurisdictional.
On June 19, 2006, The U.S. Supreme Court issued the Rapanos decision. This ruling imposed three major changes on the federal wetlands regulatory program which had the effect of reducing the overall reach of Clean Water Act jurisdiction.
Rapanos: 1) redefined “waters of the United States" 2) required the Corps to determine a “significant nexus” on a case-by-case basis before asserting jurisdiction over isolated wetlands that are not adjacent to “relatively permanent waters” 3) clarified when wetlands are considered “adjacent” and therefore subject to Clean Water Act jurisdiction.
1) Waters of the United States is a legal term that describes the types of water bodies which are regulated under the Clean Water Act (and the Oil Pollution Act). Prior to Rapanos, federal agencies had revised and expanded this definition in an effort to recapture federal jurisdiction over isolated wetlands, ditches, and streams that had been deregulated under SWANCC. The Rapanos decision restricted the definition of "waters of the United States" to only those waters that are relatively permanent, standing, or continuously flowing, and “forming geographic features” such as “oceans, rivers, streams, and lakes.” Ditches and drainage channels in which water flows intermittently or ephemerally are no longer regulated as “waters of the United States.”
2) Significant Nexus: If the Corps of Engineers wishes to assert jurisdiction over isolated wetlands that are not adjacent to relatively permanent waters, then it must establish a “significant nexus” on a case-by-case basis. "Significant nexus" is a legal term for a large and substantial chemical, biological, and physical impact between isolated wetlands and downstream "Traditional Navigable Waters." Rapanos stipulated that a significant nexus must be substantial and not speculative. However, the Supreme Court did not define nor further clarify the meaning of this term. Instead, the Court instructed the agencies to promulgate a regulatory definition of significant nexus, but this never happened.
The Rapanos decision affirmed that a significant nexus should be visually obvious and intuitively apparent. The Court gave flooding and pollution as examples, saying it should significantly affect current levels of flooding or pollution, or otherwise significantly affect the chemical, biological, and physical integrity of downstream Traditional Navigable Waters. Most isolated wetlands in the greater Houston area are relatively small and do not have the capacity to significantly carry, reduce, or affect the overall amount of nutrients, pollutants, and flood waters that enter downstream Traditional Navigable Waters.
Following the Rapanos decision, the Corps and EPA have issued various unofficial guidance documents that include proposed definitions and procedures for evaluating significant nexus, but these agencies have not yet promulgated an official regulatory definition so this term remains legally undefined. Eventually “significant nexus” may be properly codified into federal regulations, but at this time there is no regulatory definition, nor are there any official methods and procedures for determining significant nexus. "Significant nexus" should not be used to assert Clean Water Act jurisdiction at this time.
3) Adjacency: Wetlands must have a permanent broad, continuous, and abutting surface water connection to relatively permanent “waters of the United States” in order to meet the Rapanos definition of “adjacency” and thereby establish Clean Water Act jurisdiction. For any wetlands to be considered “adjacent” and jurisdictional, there must be a continuous surface connection between water in the wetlands and water in “relatively permanent waters” (which are waters of the United States).
Adjacency is defined under the Supreme Court’s Rapanos plurality opinion as follows:
“… only those wetlands with 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 the two, are “adjacent” to such waters and covered by the Act…”
The type of surface-water connection that is necessary to establish adjacency must be permanent and broad such that there is no clear boundary or physical demarcation between water in the wetlands and water in the adjoining 'relatively permanent waters.'
Intermittent and ephemeral streams are not 'relatively permanent waters' and do not provide a continuous surface-water connection for sufficient duration under normal conditions to establish “adjacency.” Likewise, directional stormwater sheet-flow, sub-surface ground water, and flood events that may occur once every 100 years, are not sufficient hydrological connections to establish “adjacency” under the Rapanos definition of this term.
Wetlands that directly abut and have a broad, continuous and permanent surface-water connection to relatively permanent streams and creeks which flow year-round, satisfy the Rapanos definition of “adjacent” and therefore would be subject to jurisdiction under Section 404 of the Clean Water Act.
The Rapanos decision benefits landowners because it reduced Clean Water Act jurisdiction over drainage ditches, intermittent and ephemeral streams, and narrowly defined when wetlands are considered "adjacent" and therefore jurisdictional.
Sackett decision (wikipedia link)
On March 21, 2012, the U.S. Supreme Court issued a decision in a wetlands case – Sackett vs. EPA. This case did not affect nor alter the boundaries of Clean Water Act jurisdiction, but instead addressed regulatory enforcement practices.
The Sacketts are a married couple in Idaho who attempted to build a house on a lot inside a residential subdivision. The EPA alleged that the Sacketts illegally filled jurisdictional wetlands on their property so EPA issued an administrative “Compliance Order” which ordered the Sacketts to stop work and restore the wetlands. The EPA then went on to threatened the Sacketts with heavy fines and other legal action. The Sacketts protested the EPA’s allegations but were denied the right to take their case to court. Meanwhile, the EPA proceeded to implement punitive enforcement actions against the Sacketts. The Supreme Court ruled that the Sacketts (and other landowners) are entitled to judicial review in federal court before the EPA (and Corps) can implement punitive enforcement actions (due process).
In Sackett, the EPA had based its improper enforcement actions on preliminary and unofficial definitions for significant nexus, adjacency, and Traditional Navigable Waters. EPA's unofficial definitions expanded the boundaries of Clean Water Act jurisdiction well beyond the narrow limits set forth by the Supreme Court in SWANCC and Rapanos. Justice Alito wrote in Sackett:
“…The reach of the Clean Water Act is notoriously unclear… Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act…”
Neither the agencies nor Congress have acted to define and clarify the scope of Clean Water Act jurisdiction. Accordingly, landowners should rely in good faith on the authority of the U.S. Supreme Court to determine the boundaries of Clean Water Act jurisdiction on their property.
The practical effect of Sackett is that the EPA and Corps now have a higher legal bar to surmount before taking enforcement action such as issuing a Cease & Desist order. Previously a landowner did not have legal standing to sue the agencies until after years of enforcement actions and administrative delays. Sackett now allows landowners to litigate early in the process and this has already influenced the Corps to suspend enforcement action on a case in New Mexico where Clean Water Act jurisdiction was questionable and not clearly established [Smith v Corps of Engineers].
On March 21, 2012, the U.S. Supreme Court issued a decision in a wetlands case – Sackett vs. EPA. This case did not affect nor alter the boundaries of Clean Water Act jurisdiction, but instead addressed regulatory enforcement practices.
The Sacketts are a married couple in Idaho who attempted to build a house on a lot inside a residential subdivision. The EPA alleged that the Sacketts illegally filled jurisdictional wetlands on their property so EPA issued an administrative “Compliance Order” which ordered the Sacketts to stop work and restore the wetlands. The EPA then went on to threatened the Sacketts with heavy fines and other legal action. The Sacketts protested the EPA’s allegations but were denied the right to take their case to court. Meanwhile, the EPA proceeded to implement punitive enforcement actions against the Sacketts. The Supreme Court ruled that the Sacketts (and other landowners) are entitled to judicial review in federal court before the EPA (and Corps) can implement punitive enforcement actions (due process).
In Sackett, the EPA had based its improper enforcement actions on preliminary and unofficial definitions for significant nexus, adjacency, and Traditional Navigable Waters. EPA's unofficial definitions expanded the boundaries of Clean Water Act jurisdiction well beyond the narrow limits set forth by the Supreme Court in SWANCC and Rapanos. Justice Alito wrote in Sackett:
“…The reach of the Clean Water Act is notoriously unclear… Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act…”
Neither the agencies nor Congress have acted to define and clarify the scope of Clean Water Act jurisdiction. Accordingly, landowners should rely in good faith on the authority of the U.S. Supreme Court to determine the boundaries of Clean Water Act jurisdiction on their property.
The practical effect of Sackett is that the EPA and Corps now have a higher legal bar to surmount before taking enforcement action such as issuing a Cease & Desist order. Previously a landowner did not have legal standing to sue the agencies until after years of enforcement actions and administrative delays. Sackett now allows landowners to litigate early in the process and this has already influenced the Corps to suspend enforcement action on a case in New Mexico where Clean Water Act jurisdiction was questionable and not clearly established [Smith v Corps of Engineers].