Posted: November 09, 2022

Since 1972, the Clean Water Act has set out to stop pollutants from entering federally protected waters, known as Waters of the United States (WOTUS). Since 1986, what types of natural resources are considered waters of the U.S. has changed, making interpretation of the Clean Water Act a challenge.

Further changes to the definition of WOTUS may be on the horizon with the Sackett v. EPA U.S. Supreme Court ruling approaching, impacting future development. Understanding how the ruling affects permitting requires understanding how Sackett v EPA came to be. Read on to get caught up on the full background of this much disputed regulation.

A Brief History of WOTUS

The Clean Water Act defines WOTUS as “navigable waters,” meaning waters that are subject to the ebb and flow of the tide and/or have been used historically or could be used in the future for national and foreign commerce transport purposes. These include interstate waters and interstate wetlands, as well as intrastate waters that could affect interstate commerce.

One of the many amendments to this definition occurred in 2006, after Rapanos v U.S. In this case, two tests were developed to determine if a body of water was covered by WOTUS regulations: The Scalia test and the Kennedy test. 

The Scalia test suggests that the term “waters” in “waters of the U.S.” refers to streams, rivers, lakes, and other permanent, standing, or continuously flowing bodies of water. Wetlands are potentially included in the Scalia test, but only when they are directly connected to other bodies of water that fall under WOTUS regulations.

The Kennedy test states that a wetland or body of water must possess a “significant nexus” to waters that are considered navigable. A wetland would have a significant nexus next to navigable waters when it significantly impacts the chemical, physical, and biological integrity of a body of water that is regulated under WOTUS regardless of its proximity or connection to a navigable water.

In 2008, the EPA issued guidance that wetlands or waters were considered WOTUS if they passed either test. But that was hardly the last time the WOTUS regulations were challenged, and the rule has continued to be scrutinized for years.

What Happened with Sackett v. EPA?

In 2004, Chantell and Michael Sackett purchased a piece of property in Idaho near Priest Lake to build a private residence. The EPA issued an order saying they violated the Clean Water Act after they filled a portion of their property with gravel during the construction process. The property had a small wetland on-site, which the EPA claimed connected to the nearby Priest Lake and was considered a water of the U.S. The EPA claimed the Sacketts needed a permit before starting construction. 

In 2008, the Sacketts sued the EPA. The parties litigated the matter over the next seven years. In 2019, the district court entered a summary judgment for the EPA, which was meant to resolve the lawsuit without a trial. The Sacketts appealed the summary judgment to the Ninth Circuit,  which is now being disputed before the Supreme Court.

How Will Sackett v. EPA Affect Future Development?

The Sacketts urged the Supreme Court to revisit the Rapanos decision and adopt the Scalia test as the main decision-maker for whether Priest Lake constitutes as a water of the U.S.. The Supreme Court’s decision will clarify how to determine what bodies of water are covered under the Clean Water Act regulations. If the court rules in favor of the EPA, the current regulations surrounding WOTUS will continue. If the court rules in favor of the Sacketts, amendments will be made to the WOTUS rule. This decision will help shape the direction of a complex permitting process, which could ultimately make land development more challenging.

The environmental permitting process can be intimidating, and any mistakes can bring development projects to a standstill. Davey Resource Group’s team of experts can help you navigate the permitting process, saving time and money by getting it right the first time. To learn more about DRG’s capabilities, contact your local office.

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