Predictions for 2024 on Federal Wetland Jurisdiction after Sackett and Regulation Amendments

Bozana L. Lundberg

Following the U.S. Supreme Court’s decision in the Sackett case in May of 2023,^[1] the U.S. EPA (“EPA”) and the U.S. Army Corps (“Army Corps”) have amended federal regulations to conform to Sackett^[2] and the Army Corps has resumed issuing jurisdictional determinations. While many lauded Sackett for curbing federal wetland jurisdiction, many unresolved issues remain. What does 2024 hold for clients and practitioners if their projects include developing property with wetlands?

Depending on which state the project is located in, the regulatory standard will differ. Before Sackett was decided, EPA and the Army Corps promulgated new federal regulations (“2023 Rule”) in January 2023^[3] as an attempt to address issues with WOTUS. The regulations were immediately challenged in federal court. This litigation remains pending with opponents of the 2023 Rule and the Conforming Rule taking the position that the agencies are still overstepping their authority under the Clean Water Act.^[4] Twenty-seven states are following the pre-2015 regime because they challenged the 2023 Rule in federal court. While the 2023 Rule and the Conforming Rule are enjoined, agencies are applying pre-Obama era law in those states. Meanwhile, states that did not challenge the 2023 Rule are subject to the 2023 Rule and the Conforming Rule.

As to open issues left in the Sackett decision, they seem unlikely to be resolved by Congress. Justice Alito hinted that an amendment to the Clean Water Act is needed. Writing for the majority in Sackett, he rejected EPA’s “overly broad interpretation” of the Clean Water Act stating that “this Court requires Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power[.]”

An amendment to the Clean Water Act was before Congress in 2023 but it did not advance beyond committee. Four House Democrats proposed legislation titled the Clean Water Act of 2023 (H.R. 5983) that would have replaced the term “waters of the United States” with “protected water resources.” In the preamble, the proposed legislation called Sackett “overly narrow.”  The bill was before the House Transportation and Infrastructure Committee and then referred to the Water Resources and Environment Subcommittee. Both committee chairmen favor Sackett, calling it “a decisive win for America’s farmers, small businesses, property owners, and those who build our infrastructure.” Chairman Graves also previously sponsored a joint resolution to nullify the 2023 Rule, which passed the House and Senate but was vetoed by the President. There were insufficient votes to overturn the veto. An amendment seems unlikely in the near future, especially one undoing Sackett. With Congress and states divided on this issue, it does not seem likely that the narrowing of federal jurisdiction in Sackett is likely to be reversed any time soon.

Looking back at Sackett, it is notable that none of the nine Justices sided with the federal agencies. Instead, all of them agreed that the Ninth Circuit decision that federal jurisdiction reached the Sackett property should be reversed. However, they disagreed on how far to limit Clean Water Act jurisdiction. That is in contrast to the 2006 Rapanos^[5] decision, where four Justices (Stevens, Souter, Ginsburg, and Breyer) agreed the agencies got it right. All of these Justices are no longer on the bench. Fast forward to 2023, Justice Kavanaugh, writing an opinion concurring in judgment, disagreed with the majority in Sackett and noted that for “45 years and across all eight Presidential administrations” the interpretation of wetlands by the Army Corps included adjacent wetlands even if there was no continuous surface connection.” Justice Kavanaugh disagreed with interpreting “adjacent” to mean only those wetlands that are “adjoining.” Seemingly simple semantics, but the question on “the outer boundaries of the Act’s geographical reach [which] ha[s] been uncertain from the start” does not seem to have been fully resolved with Sackett. At a minimum, as Justice Alito acknowledged, the agencies will have to define what “continuous” means.

As for individual states, some do have their own protections such as Ohio, which has an isolated wetlands rule. These states may fill the gap left by Sackett. Other states, such as North Carolina, are moving to change state law to prohibit greater wetlands protections than provided under federal law.^[6] There are also states with no independent wetland protections at all such as Kentucky, Texas, and Oklahoma. They seem unlikely to rush to fill the gap left after Sackett.

It is important to keep in mind that Sackett did not take away all federal jurisdiction. Therefore, project developers will still want to confirm there are no federal wetlands on their property by engaging wetlands consultants. Further, depending on the findings, the Army Corps may need to issue a determination before projects can move forward.

Please contact Bozana Lundberg or James Kezele with questions on wetlands permitting.

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[1] Sackett v. EPA, 598 U.S. 651, 143 S.Ct. 1322 (2023).

[2] Revised Definition of “Waters of the United States”; Conforming, 88 Fed. Reg. 61964 (Sept. 8, 2023) (“Conforming Rule”).

[3] Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004 (Jan. 18, 2023).

[4] See Business Pls.’ Mot. Summ. J., State of Texas et al. v. U.S. EPA, et al., No. 3:23-cv-00017 (S.D. Tex. filed Feb. 2, 2024).

[5] Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006).

[6] North Carolina Farm Act of 2023 (N.C. Senate Bill 582), available at: https://www.ncleg.gov/BillLookUp/2023/s582.