What is a Wetland?

The Clean Water Act (CWA)of 1972 forbids “the discharge of any pollutant into “navigable waters” 33 U. S. C. §§1311(a), 1362(12)(A). The 1970 amended version of the CWA included interstate waters as well as navigable waters. 33 U. S. C. §1160(a) (1970 ed.). But what are navigable waters? The Act of 1972 defines navigable waters as “the waters of the United States, including the territorial seas. 33 U.S.C.S. §§ 1311(a), 1362(7), (12)(A). The problem with this definition is that the Act fails to define “waters of the United States.”

Why was this a problem? Because if a property owner violates the CWA by dumping pollutants into “waters of the United States” either purposefully or inadvertently, then the property owner could suffer either criminal or civil penalties enforced by the Environmental Protection Agency (EPA) and the Army Corps of Engineers. Sackett v. EPA, 143 Ct. 1322, 1330-1331 (2023). This poses a vast problem because property owners could discharge pollutants into water not knowing that the body of water is considered “waters of the United States” thus violating the CWA.

 In Sackett v. Epa, the Supreme Court of the United States answered this problematic question of what are “waters of the United States?” Prior to Sackett, the EPA defined “the waters of the United States” to encompass any body of water that “could affect interstate commerce,” along with “wetlands adjacent to those waters.” 40 CFR §§230.3(s)(3), (7) (2008); Sackett, 143 Ct. at 1331. Under this interpretation, “adjacent” did not just mean “‘bordering’ or ‘contiguous,’” it also included the term “neighboring.” §230.3(b); Id. For these reasons, the EPA asserted its jurisdiction over any wetlands that were adjacent to non-navigable waters as long as the adjacent wetlands “had a significant nexus to a traditional navigable water.” Id. This “significant nexus” appeared when “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of those waters.” Id.

This previous definition of “waters of the United States” led Michael and Chantell Sackett to file suit against the EPA. Id. at 1332. In Sackett, the Sacketts had previously purchased a lot close to Priest Lake to build a home.  Id. at 1331. As they began to build their home, the couple moved dirt and rocks towards the back of their property. Id. Later, the EPA informed the Sackets that they were violating the CWA because the portion of their property that they moved the dirt and the rocks onto was protected wetlands. Id. The EPA then ordered the couple to restore the site or suffer a fine of $40,000 a day. Id. In response to this, the Sackets filed suit against the EPA stating that these wetlands on their property were not “waters of the United States”, and thus the EPA lacked jurisdiction. However, the EPA stated that the wetlands were, in fact, “waters of the United States” because they were adjacent (“in the same neighborhood”) “as an unnamed tributary.” Id. This tributary drained into a creek that then drained into Priest Lake (a navigable lake). Id. at 1332. In order to “establish a significant nexus,” the EPA grouped the couple’s property with another close wetland area and then stated that if the properties were looked at together they would affect the ecology of Priest Lake.  Id.

The Supreme Court of the United States stated that the “significant-nexus test” used by the EPA was problematic because “almost all waters and wetlands” could fall into the EPA’s jurisdiction. Id. at 1335. If the EPA kept using this test, many property owners would be in constant danger of violating the CWA since it is difficult to determine whether a piece of property contains wetlands that are “waters of the United States.” Id. Stating that this was a bad test, SCOTUS then turned to define “navigable water” to determine what wetlands were actually under the jurisdiction of the EPA. Id. at 1335, 1336.

As aforementioned, the CWA applies to “navigable waters” which are defined as “waters of the United States.” Id. at 1336. The Court agreed with the pluarity opinion of the Rapanos court that stated “the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” Id.; Rapanos v. United States, 547 U.S. 715, 742 (2006). The court backed this up by stating that Congress and statutes have all defined “waters” as lakes, rivers, and oceans. Id. at 1338. In response to this, the EPA argued that “‘waters’ is ‘naturally read to encompass wetlands.’” Id. The Supreme Court rejected this argument by stating that States could not regulate water resources if the EPA had jurisdiction over anything water-related. Id.

In conclusion, the Sackett court held that the “CWA extends to only 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.” Id. at 1344; Rapanos 547 U. S.at 742, 755.

The views and opinions express in this blog post are solely those of the author and do not necessarily reflect the official policy or position of Mississippi College, Mississippi College School of Law, or the Law Review. The author is solely responsible for the content of this post. The information provided in this post is for general informational purposes only and should not be construed as legal advice.