Date: July 27, 2023Attorney: Gordon C. Duus

Authored by Gordon C. Duus, Partner & Lee Crutcher, Summer Law Associate.

Introduction: In Sackett v. Environmental Protection Agency, the Supreme Court decided a jurisdictional challenge by Michael and Chantel Sackett of an enforcement action by the United States Environmental Protection Agency (EPA). The Sacketts were accused of violating the Clean Water Act (CWA or the Act), which prohibits discharging pollutants into the “waters of the United States” (WOTUS) and their “adjacent wetlands.” The EPA has enforcement jurisdiction over this provision of the CWA and established that jurisdiction in this action by claiming the ditch which the Sacketts dumped fill into had ecologically significant nexus to Priest Lake. The Sacketts instituted a jurisdictional challenge to this enforcement action claiming that their property was not WOTUS as defined by the Act

                Faced with how to determine what are WOTUS, the District Court entered summary judgment for the EPA deferring to the EPA’s definition. The Ninth Circuit Court of Appeals affirmed holding that the CWA grants the EPA jurisdiction over wetlands with a “significant nexus” to traditional navigable waters. On three prior occasions the Supreme Court tried to clarify the meaning of WOTUS. The Supreme Court granted certiorari where they reversed the decisions of the lower court, ruled for the Sacketts, and established a restrictive test to determine what are WOTUS and eliminating the case-by-case determinative method that the regulatory agencies previously employed.    

Background: For most of the nation’s history, regulations concerning water pollution were mostly left to the states that employed regulatory agencies to institute enforcement actions against polluters. In 1972, Congress replaced state statutes with the CWA which prohibits “the discharge of any pollutant” into “navigable waters.” The Act broadly defines the term “pollutant” to include both contaminants like chemical wastes and mundane materials like “rock, sand,” and “cellar dirt.”

                The CWA is enforced by both the EPA and the Army Corps of Engineers (Corps). The Act imposes both civil and criminal penalties for both negligent or inadvertent violations, these penalties can include fines of up to $60,000 per day and/or imprisonment.   

                Under the Act, agencies, both federal and state, are empowered to issue permits exempting activity that would otherwise be unlawful pollution. In 1977, Congress amended the CWA adding §1344(g)(1) which specified that state permitting programs may regulate discharges into (1) any waters of the United States, (2) except for traditional navigable waters, (3) “including wetlands adjacent thereto.”

Court’s Analysis: The EPA instituted an enforcement action against the Sacketts because their lot was lumped together with the Kalispell Bay Fen, a large nearby wetland complex that the agency regarded as “similarly situated” to the Sacketts’ lot. Evident from the fact that this is the fourth occurrence where the court is tasked with determining the meaning of “waters of the United States” and their adjacent wetlands, the court acknowledges that this has been “a contentious and difficult task.”

                By ruling that the ditch near the Sacketts was too attenuated from Priest Lake, the Supreme Court held that the CWA’s coverage only extend those wetlands that are “as a practical matter indistinguishable from waters of the United States.” To determine this, first, the waters adjacent to the wetlands must be a relatively permanent body of water connected to traditional interstate navigable waters and offers streams, oceans, rivers, and lakes as an example.  Second, the wetland must have a continuous surface connection with that water making it difficult to determine where the water ends and the wetland begins.

                The court reasoned that as a matter of statutory interpretation “waters” refers only to those navigable bodies of water and wetlands are included in this not separate from it. Therefore, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” Any other reading “would effectively amend and substantially broaden §1362(7) to define ‘navigable waters’ and ‘waters of the United States and adjacent wetlands.” Since “regulation of land and water use lies at the core of traditional state authority” “an overly broad interpretation of the CWA’s reach would impinge on this authority.”

                The Court further reasoned that Due Process interests are implicated in this case because of the criminal penalties attached to violations of the CWA. Due Process requires Congress to define penal statutes “with sufficient definiteness that ordinary people can understand what conduct is prohibited” and “in a manner that does not encourage arbitrary and discriminatory enforcement.” According to the Court, the meaning of “waters of the United States” under the EPA’s interpretation remains “hopelessly indeterminate.” Prior to this decision, determinations of jurisdiction were made on a case-by-case basis where “the boundary between a ‘significant’ and an insignificant nexus is far from clear.”

                This ruling restricts the jurisdiction of the EPA, and the Corps reach over “waters of the United States” by expressly abolishing the “significant nexus” analysis and limiting the federal government’s reach under the CWA into intrastate waters.

New Jersey’s Regulatory Scheme

                Sackett has enormous ramifications at the federal level as it effectively restricts the jurisdiction of the EPA and provides some clarity to property owners about whether their land is covered by the CWA. Additionally, by restricting the jurisdiction of the EPA over intrastate waters, the Court leaves room for state agencies to implement expansive regulations if they choose, what would that mean for New jersey (NJ)? Mostly nothing. In 1994, the New Jersey Department of Environmental Protection (DEP) assumed responsibility for the federal wetlands permitting program in most of the state, imposing restrictions beyond that of the CWA. The DEP expressly assumes all responsibility for oversight and protection of wetlands within the state from the EPA and the Corps as state laws and regulations go further than federal mandates.

                New Jersey regulates its wetlands through eight main statutes:

  1. Freshwater Wetlands Protection Act

                NJ protects and oversees its freshwater wetlands under the Freshwater Wetlands Protection Act of 1987 (FWP). A freshwater wetland is defined as “an area that is inundated or saturated by surface water or groundwater” sufficient to support “vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation.” Therefore, a wetland’s existence is proved by three factors: (1) water; (2) saturated soil; and (3) water plants. The DEP is empowered to regulate most activities proposed in wetlands and nearby transition or “buffer” areas. A permit from the DEP is required to engage in regulated activities in freshwater wetlands and its nearby transition areas.

  • Coastal Area Facilities Review Act

                The Coastal Area Facility Review Act (CAFRA) protects NJ’s coastline by establishing a permitting program to regulate certain kinds of coastal construction activities including public, industrial, and commercial development as well as housing developments of 25 or more units. The Act limits jurisdiction to the extensively defined “coastal areas” encompassing about 1,300 square miles of land area stretching from the coastline of Middlesex County, south to the coasts of Cape May County, and north to the Delaware River along Salem County. A permit from the DEP is required to construct CAFRA-subject facilities which include public, industrial, and commercial development, as well as housing units of 25 or more units.  

  • Wetlands Act of 1970

                The Wetlands Act of 1970 regulates almost all types of construction activity in certain coastal and tidal wetlands. The statute establishes jurisdiction over wetlands that “are at or below high water” and requires the DEP to map these areas – such maps are filed with the county in which the wetlands are located. A permit is required from the DEP for alterations of, or activities, in mapped coastal wetlands.

  • Waterfront Development Act

                NJ monitors and protects waterfront development, other than that subject to CAFRA, through the Waterfront Development Act. The jurisdiction of the WDA is defined to include all lands lying up to and including the mean high water lines and adjacent uplands no less than 100 feet but no more than 500 feet from the mean high water line. Commercial, industrial, and residential development of projects with 24 dwelling units or less are covered by the WDA. Common examples of such development would include, but is not limited to, the installation of docks, piers, jet-ski ramps, boat lifts, and bulkheads.

  • Highlands Water Protection and Planning Act

                In NJ, about 80,000 acres spanning Bergen, Passaic, Morris, Somerset, Hunterdon, Sussex, and Warren counties are identified as the Highlands and this region is protected through the Highlands Water Protection and Planning Act. The law requires that any major Highlands development must be approved by the DEP and prohibits major Highlands development within 300 feet of any Highlands open waters.

  • Flood Hazard Area Control Act

                The Flood Hazard Area Control Act is NJ’s regulatory scheme employed to address and reduce risks arising from flooding. To accomplish this, the act mandates that the DEP delineate and mark flood hazard areas and regulates stream cleaning and clearing activities. All “development” within these marked areas, and surrounding channel bank, require a permit unless exempted from regulation. Under DEP’s regulations permits are required for developments that are (1) in the flood plain; (2) 25 feet back from the top bank of any channel; or (3) 50 feet back from the top of any channel bank along waters of certain classifications or waters that are a critical part of the habitat supporting a threatened or endangered species.

  • Pinelands Protection Act

                The Pinelands Protection Act establishes a planning commission to develop a comprehensive management plan aimed at preservation of the Pinelands’ natural resources including over one million acres of pine forests, cedar swamps, and billions of gallons of pristine groundwater. In NJ, the “Pinelands” encompass an area within Ocean, Burlington, Atlantic, Cape May, and Cumberland counties. In this designated area, no development can occur unless such development is in conformity with the management plan which include wetlands protections. Accordingly, the commission may review an application for development within their jurisdiction and can grant a waiver for nonconforming development plans.

  • Tidelands Act

                The Tidelands are all lands that are now or formerly flowed by the mean high tide of a natural waterbody (e.g., the ocean, bay, sections of rivers and creeks, and marshlands). The state of NJ owns all lands that are flowed by the tide up the high-water line and has produced the Tidelands Claims Maps to delineate these areas. Under the law, individuals may either receive a Riparian Grant or Tidelands License. A Riparian Grant is a deed from the state for the sale of these lands owned by the state while a Tidelands License is a short-term rental agreement for the use, occupation, and development of such tidelands. Accordingly, licensees must comply with related regulations, including CAFRA, WDA, and the Wetlands Act of 1970.

Policy Implications for Property Owners and Developers:

                New Jersey’s statutory and regulatory scheme offers guidance to aid property owners in assessing whether an area that they intend to develop is under the jurisdiction of the DEP. The DEP has maps showing the boundaries of all coastal wetlands within New Jersey from the Raritan Bay South. For those inland areas that have not been mapped, property owners may have to retain an expert consultant who can assess the presence of water, saturated soil, and water plants on an intended development area.