The U.S. Army Corps of Engineers refuses to accept the Supreme Court’s decision in Sackett v. EPA, which substantially reduces the scope of Corps’ jurisdiction over "adjacent wetlands."
The Corps’ "unwillingness to concede its lack of regulatory jurisdiction" prompted the U.S. Fifth Circuit to emphatically state "enough is enough" in a recent decision.
In Sackett, the Supreme Court held that Corps’ jurisdiction under the Clean Water Act "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." The Court explained that the Corps must establish "first, that the adjacent body of water constitutes waters of the U.S. — a relatively permanent body of water connected to traditional navigable waters. Secondly, the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends, and the wetland begins."
The Corps has refused to accept this holding and the limitations on its jurisdiction as established by the Supreme Court. The Corps’ current position is that a ‘continuous surface connection’ (CSC) exists when wetlands are connected to jurisdictional water by a discrete feature like a non-jurisdictional ditch, swale, pipe or culvert. The EPA and Corps echoed this view in guidance released in November 2023. However, the Fifth Circuit recently decided the case of Lewis v. U.S., which negates the EPA’s and Corps’ position in the Fifth Circuit.
Wetlands on two tracts in Livingston Parish, Louisiana, were at issue. As to the east tract, water flowed through roadside ditches to an intermittently flowing unnamed tributary, to Colyell Creek, and then to Colyell Bay about 10 to 15 miles away. As to the west tract, water flowed through roadside ditches to Switch Cane Bayou, to Colyell Creek and then to Colyell Bay.
Two approved jurisdictional determinations (AJD) were issued, finding wetlands on the tracts. The later AJD found that there were no jurisdictional wetlands on the west tract but there were wetlands on the east tract by "connecting (a) roadside ditches and (b) a culvert to (c) an unnamed non-‘relatively permanent water’ tributary, then to (d) Colyell Creek (a ‘relatively permanent water’) several miles away, and ultimately to (e) the traditionally navigable waterway of Colyell Bay 10 to 15 miles from the Lewis property."
Upon review by the Fifth Circuit and based on these facts, the Court found: "There is no ‘continuous surface connection’ between any plausible wetlands on the Lewis tracts and a ‘relatively permanent body of water connected to traditional interstate navigable waters.’ Recall that the nearest relatively permanent body of water is removed miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary. In sum, it is not difficult to determine where the ‘water’ ends and any ‘wetlands’ on Lewis’s property begin — there is simply no connection whatsoever. There is no factual basis as a matter of law for federal Clean Water Act regulation of these tracts." Thus, the Fifth Circuit found no CSC, even though there was a ditch, a culvert and a non-relatively permanent tributary.
As a result of the Lewis decision, non-jurisdictional features such as ditches, culverts and non-relatively permanent waterways are not continuous surface connections and cannot serve to link wetlands on a property to a relatively permanent waterway. On this point, the November 2023 Guidance is not consistent with the Fifth Circuit’s strict and straightforward application of Sackett in the Lewis decision.
For commercial and industrial siting and expansion purposes, the importance of the Lewis decision in Texas and Louisiana, both in the Fifth Circuit, cannot be understated. It can be used with or against the Corps to assert that a property, which may have wetlands on it, is no longer jurisdictional.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance.
For more information, visit bswenviroblog.com or email jbk@bswllp.com.
