RECENT SUPREME COURT RULING RE: CLEAN WATER ACT
Following a recent ruling by the Supreme Court of the United States, the Environmental Protection Agency and the Army Corps of Engineers (collectively, the “EPA”) revised their regulations in a manner that should benefit landowners, builders and developers by limiting property that is subject to the Clean Water Act.
The EPA, acting in furtherance of the Clean Water Act, has historically utilized a broad definition of the term “waters of the United States” to justify regulation of property that had little connection to or bearing upon navigable waters. The EPA routinely exerted jurisdiction over wetlands, with the authority to dole out severe monetary and criminal penalties for any violations, if those wetlands were “adjacent to” (meaning, in the same neighborhood as), and possessing a “nexus to” traditional navigable waters.
SACKETT V. ENVIRONMENTAL PROTECTION AGENCY
In Sackett v. Environmental Protection Agency, 598 U.S. 651, 143 S.Ct. 1322, 215 L.Ed.2d 579 (2023),the Supreme Court (the “Court”), by a 9-0 decision, ruled in favor of the landowners who spent nearly 20 years in a legal battle with the EPA. The Sackett’s had purchased land near a lake in Idaho in 2004 and planned to build a home on the property. Although they obtained the proper permits, the EPA stepped in to stop the work, threatening fines of $40,000 per day. The property in question included wetlands that were near a ditch that fed into a creek, which fed into the nearby lake.
The case finally reached the Court (for the second time) in October of 2022, when the Court found that the Sackett’s property was not subject to the Clean Water Act. The Court held that “the Clean Water Act extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are indistinguishable from those waters.” Consequently, wetlands that are separate from traditional navigable waters cannot be regulated and restricted under the Clean Water Act.
PROPERTY THAT CANNOT BE REGULATED AND RESTRICTED UNDER CLEAN WATER ACT
As a result, the EPA has amended their regulations to remove the “significant nexus” standard, and to redefine “adjacent” as meaning “having a continuous surface connection,” among other modifications. The revisions significantly limit what the EPA can regulate and provide much clearer guidance to landowners and developers in evaluating property.
The attorneys of Souza Roy are prepared to assist you with property that cannot be regulated and restricted under the Clean Water Act.
The information you obtain at this site should not be taken as formal legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
ALL BUSINESS.™
