Edward Sullivan and Carrie Richter
BridgeTower Media Newswires
Lest you think that the current structure of land development review is safe from the hatchet of the U.S. Supreme Court, consider the potential ramifications of Sackett v. Environmental Protection Agency, which the court has agreed to hear.
Using the court’s recent decisions as a guide, Sackett is likely to shake up the well-established structure of state and federal development review permitting regarding water quality protection. Although the precise nature and extent of the ripple effect on local land use review is not yet known, Sackett is likely to be significant.
Under the existing regulatory scheme in Oregon, for example, before a developer (or property owner) can fill (or discharge material) into “the waters of the United States,” the Clean Water Act (CWA) requires a fill permit be secured from the Department of State Lands (DSL), in concurrence with the U.S. Army Corps of Engineers (acting on behalf of the Environmental Protection Agency). A DSL/Corps issued fill permit evaluates the effect of the discharge, accounting for the designated use of the water body (e.g., for domestic water supply or recreational use), pollutant limits necessary to protect the designated use (in the form of numeric or narrative criteria), and policies to ensure that existing water uses will not be degraded by pollutant discharges through avoidance and/or mitigation.
The term “waters of the United States” – the triggering threshold for regulation in the language of the CWA – includes discharges of “pollutants” to “navigable waters.” Additional EPA rulemaking defines “waters of the United States” broadly to include not only traditional navigable waters (and their tributaries), but also “wetlands adjacent to” such waters. The regulations further state that wetlands separated from other “waters of the United States” by man-made barriers were nonetheless “adjacent wetlands.”
In 2004, the Sacketts purchased a vacant property for development near Priest Lake in Idaho. Although the Sacketts’ property contained “wetlands” as defined by the CWA’s regulations, the property did not abut either Priest Lake or a nearby tributary. The property was separated from the tributary (and wetlands that did abut the tributary) by a road.
After securing all necessary local permits and commencing construction, the Corps ordered the Sacketts to cease work until they obtained a fill permit for the disputed area and through that process, ordered that they restore the property to its preconstruction condition.
The Sacketts challenged the decision in federal court claiming that the CWA did not give the EPA authority over their property. Both the district court and the Ninth Circuit upheld the EPA’s finding that the Sacketts land contained wetlands that qualify as “navigable waters,” requiring a permit.
Resolving the Sacketts’ claim required application of a previous Supreme Court decision – Rapanos v. United States, where resolution of the case dealt only with navigability of a stream, there was a split decision in how to deal with wetlands.
In that case, Justice Anthony Kennedy, joined by three other justices, advocated for a “significant nexus” test. Under this standard, a wetland may be regulated if it, either alone in combination with other “similarly situated” wetlands in the “region,” significantly affects the physical, chemical, and biological integrity of a traditional navigable water.
Justice Antonin Scalia, also joined by three justices, proposed a narrower test that “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA.” The Sacketts now argue for formal adoption of Scalia’s “surface-water” only connection.
To make matters a bit more complicated, since Raponos was decided, the EPA has engaged in rulemaking to provide further guidance on what qualifies as waters of the state. The “significant nexus” test” adopted under the Obama administration in 2015 was replaced by the Trump administration’s Navigable Water Protection Rule, which adopted Scalia’s surface connection rule. The Trump rules were vacated through a court challenge. The EPA under the Biden administration is in the process of promulgating new rules and has asked that the Supreme Court reject the Sacketts’ petition as untimely – therefore, the court should defer to agency authority to administer the CWA.
Although the briefing from parties hoping to sway the court to their position continues in earnest and oral argument is scheduled for October, the future of the CWA jurisdiction is uncertain.
Environmental and climate activists argue that the court should maintain EPA’s current review. Property rights activists and those adverse to agency authority desire a judicial declaration favoring Scalia’s surface water connection test. Using the recent court decisions in other areas as a guide, there is little doubt that the Sacketts will prevail. Most justices are likely to see the surface water test as straightforward, easy to apply and one that does not rely on expert hydrology analysis.
If the federal government interest is limited to only those wetlands bearing a surface water connection to navigable waterways, the remaining regulatory landscape will be left to the states. According to Janet Larsen, author of “Dead Zones Increasing in World’s Coastal Waters,” of the 190,000 square miles of the Upper Mississippi River Basin, less than 1 percent of the system is navigable. Already, the levels of nitrogen from fertilizer discharge into the Mississippi River have created dead zones within the Gulf of Mexico.
Although this position may satisfy activists for state rights, it is likely to encourage state, local governments and special districts to rush to fill the void by creating a disparate array of regulations whether for environmental purposes or to protect drinking water.
Remember, state and local government regulation of water bodies has largely been imported and embedded into the federal CWA program since it was established over 40 years ago.
Extracting and independently implementing water quality regulation on a state level will be a huge and expensive undertaking, even for those states with a political inclination to do so. Certainly, there will be no incentive for some states to protect downstream states and no structure for equitably allocating the associated costs and burdens between them. This uncoordinated approach will not only sacrifice water quality, but also significantly complicate life for stormwater managers, and inject complication and uncertainty into land development efforts nationwide.
This may be another example of being careful about what you wish for. A complete overhaul of the nation’s clean water program is likely to be anything but straightforward and easy after the Sackett decision comes down.
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Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at esulliva@gmail.com.
Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.
