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Lest you think that the current structure of land development review is safe from the hatchet of the U.S. Supreme Court, consider the potential ramifications of Sackett v. Environmental Protection Agency, which the court has agreed to hear. Using the court’s recent decisions as a guide, Sackett is likely to shake up the well-established structure of state and federal development review permitting regarding water quality protection. Although the precise nature and extent of the ripple effect on local land use review is not yet known, Sackett is likely to be significant.

Under the existing regulatory scheme in Oregon, for example, before a developer (or property owner) can fill (or discharge material) into 鈥渢he waters of the United States,鈥� the Clean Water Act (CWA) requires a fill permit be secured from the Department of State Lands (DSL), in concurrence with the U.S. Army Corps of Engineers (acting on behalf of the Environmental Protection Agency. A DSL / Corps issued fill permit evaluates the effect of the discharge, accounting for the designated use of the water body (e.g., for domestic water supply or recreational use), pollutant limits necessary to protect the designated use (in the form of numeric or narrative criteria), and policies to ensure that existing water uses will not be degraded by pollutant discharges through avoidance and/or mitigation.

The term 鈥渨aters of the United States鈥� 鈥� the triggering threshold for regulation in the language of the CWA 鈥� includes discharges of 鈥減ollutants鈥� to 鈥渘avigable waters.鈥� Additional EPA rulemaking defines 鈥渨aters of the United States鈥� broadly to include not only traditional navigable waters (and their tributaries), but also 鈥渨etlands adjacent to鈥� such waters. The regulations further state that wetlands separated from other 鈥渨aters of the United States鈥� by man-made barriers were nonetheless 鈥渁djacent wetlands.鈥�

In 2004, the Sacketts purchased a vacant property for development near Priest Lake in Idaho. Although the Sacketts’ property contained 鈥渨etlands鈥� as defined by the CWA’s regulations, the property did not abut either Priest Lake or a nearby tributary. The property was separated from the tributary (and wetlands that did abut the tributary) by a road. After securing all necessary local permits and commencing construction, the Corps ordered the Sacketts to cease work until they obtained a fill permit for the disputed area and through that process, ordered that they restore the property to its preconstruction condition.

The Sacketts challenged the decision in federal court claiming that the CWA did not give the EPA authority over their property. Both the district court and the Ninth Circuit upheld the EPA’s finding that the Sacketts land contained wetlands that qualify as 鈥渘avigable waters,鈥� requiring a permit. Resolving the Sacketts’ claim required application of a previous Supreme Court decision 鈥� Rapanos v. United States, where resolution of the case dealt only with navigability of a stream, there was a split decision in how to deal with wetlands. In that case, Justice Anthony Kennedy, joined by three other justices, advocated for a 鈥渟ignificant nexus鈥� test. Under this standard, a wetland may be regulated if it, either alone in combination with other 鈥渟imilarly situated鈥� wetlands in the 鈥渞egion,鈥� significantly affects the physical, chemical, and biological integrity of a traditional navigable water. Justice Antonin Scalia, also joined by three justices, proposed a narrower test that 鈥渙nly those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA.鈥� The Sacketts now argue for formal adoption of Scalia’s 鈥渟urface-water鈥� only connection.

To make matters a bit more complicated, since Raponos was decided, the EPA has engaged in rulemaking to provide further guidance on what qualifies as waters of the state. The 鈥渟ignificant nexus鈥� test鈥� adopted under the Obama administration in 2015 was replaced by the Trump administration’s Navigable Water Protection Rule, which adopted Scalia’s surface connection rule. The Trump rules were vacated through a court challenge. The EPA under the Biden administration is in the process of promulgating new rules and has asked that the Supreme Court reject the Sacketts’ petition as untimely 鈥� therefore, the court should defer to agency authority to administer the CWA.

Although the briefing from parties hoping to sway the court to their position continues in earnest and oral argument is scheduled for October, the future of the CWA jurisdiction is uncertain. Environmental and climate activists argue that the court should maintain EPA’s current review. Property rights activists and those adverse to agency authority desire a judicial declaration favoring Scalia’s surface water connection test. Using the recent court decisions in other areas as a guide, there is little doubt that the Sacketts will prevail. Most justices are likely to see the surface water test as straightforward, easy to apply and one that does not rely on expert hydrology analysis.

If the federal government interest is limited to only those wetlands bearing a surface water connection to navigable waterways, the remaining regulatory landscape will be left to the states. According to Janet Larsen, author of 鈥淒ead Zones Increasing in World’s Coastal Waters,鈥� of the 190,000 square miles of the Upper Mississippi River Basin, less than 1 percent of the system is navigable. Already, the levels of nitrogen from fertilizer discharge into the Mississippi River have created dead zones within the Gulf of Mexico.

Although this position may satisfy activists for state rights, it is likely to encourage state, local governments and special districts to rush to fill the void by creating a disparate array of regulations whether for environmental purposes or to protect drinking water. Remember, state and local government regulation of water bodies has largely been imported and embedded into the federal CWA program since it was established over 40 years ago.

Extracting and independently implementing water quality regulation on a state level will be a huge and expensive undertaking, even for those states with a political inclination to do so. Certainly, there will be no incentive for some states to protect downstream states and no structure for equitably allocating the associated costs and burdens between them. This uncoordinated approach will not only sacrifice water quality, but also significantly complicate life for stormwater managers, and inject complication and uncertainty into land development efforts nationwide.

This may be another example of being careful about what you wish for. A complete overhaul of the nation’s clean water program is likely to be anything but straightforward and easy after the Sackett decision comes down.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.