Virginia State Water Control Law Reigns Supreme for Protection of Wetlands in the Commonwealth

On May 25, the Supreme Court of the United States significantly narrowed the scope of wetlands protected by the Clean Water Act (CWA or Act). The Court held that only wetlands indistinguishable from Waters of the United States (WOUS) ⸺ i.e. wetlands which are adjacent to and which have a “continuous surface connection” to WOUS are protected.  See Sackett v. EPA, No. 21-454, slip op. at 1 (U.S. May 25, 2023).  It is not yet clear what the precise impact on federal agency authority may be but, Sackett’s definition of jurisdictional wetlands surely leaves significantly fewer wetlands subject to and protected by the CWA.  In states like the Commonwealth of Virginia, however, which regulate isolated wetlands under state law, Sackett will have little⸺ if any ⸺impact on permitting of wetlands impacts, although it should restrain the federal government’s ability to order the costly and time-consuming preparation of an environmental impact statement (EIS) on projects previously subject to the requirements of the National Environmental Policy Act (NEPA) because they purportedly impacted federal jurisdictional wetlands.

At the core of Sackett and the decades-long expansion/retreat of federal wetlands protections is the changing definition of WOUS.  Since inception, the CWA has given the United States Army Corps of Engineers (ACOE or Corps) and the U.S. Environmental Protection Agency (EPA) jurisdiction over Waters of the United States, but without precisely defining that term. As a result, the agencies and the courts have struggled to fill the statutory vacuum in a process that Justice Alito describes in Sackett as “contentious and difficult.” Historically, the Corps and EPA have taken a fairly expansive view of jurisdictional wetlands subject to the CWA and, pre-Sackett, Federal regulations (40 C.F.R. §230.3) considered any wetlands “bordering, contiguous [with], or neighboring” intrastate bodies of water —even though separated by berms, dunes, or man-made barriers such as dykes—protected waters.

The Supreme Court has waded into the wetlands jurisdiction battle (pun intended) on several previous occasions. Prior to Sackett, the Court most recently addressed the CWA’s jurisdiction over wetlands in the 2006 case, Rapanos v. United States, 547 U.S. 715 (2006). Rapanos yielded an unclear plurality opinion rule that wetlands with a “significant nexus” to traditional navigable waters were subject to regulation under the CWA.  Rapanos v. United States, (plurality opinion). At the time that the events giving rise to Sackett began, this “significant nexus” test controlled, and the enforcing agencies considered a variety of ecological and hydrological factors to determine whether the subject wetlands had a significant nexus to navigable waters to constitute WOUS subject to the Act.

In Sackett, Property owners Michael and Chantel Sackett received a compliance order from EPA requiring them to halt construction of a home on a lot they owned near Priest Lake in Bonner County, Idaho because the development impacted wetlands which EPA contended were jurisdictional under CWA. The EPA argued that, because the wetlands on the Sacketts’ property were “similarly situated” with a nearby wetland complex, they evinced a sufficient nexus with Priest Lake (albeit through a tributary, which fed into a creek and in turn the lake) to be jurisdictional. On appeal from a years-long enforcement action, the Supreme Court disagreed. Writing for the majority, Justice Alito traced the history of CWA jurisdiction and ruled that the Act intended to reach wetlands which were “indistinguishable” from other jurisdictional waters and that a nexus with such waters was insufficient to create jurisdiction. Rather, to be “indistinguishable from” Waters of the United States and subject to the CWA, wetlands had to have a “continuous surface connection” to traditionally navigable waters and wetlands like the Sackett’s, which were only tenuously related to traditional navigable waters, did not qualify. While all nine Justices agreed that the Sacketts’ property was not subject to EPA regulation, a minority disagreed as to the appropriate test of whether wetlands are protected “Waters of the United States.”

Accordingly, Sackett will no doubt restrict ACOE’s and EPA’s jurisdiction over wetlands like the Sackett’s, which do not have a continuous, surface-water connection to well-known WOUS. Still, the opinion is unlikely to have a significant effect ⸺at least in terms of permitting and enforcement ⸺ upon jurisdictions like Virginia, which regulate wetlands under state law. In 2000, at the height of battles over the definition of jurisdictional wetlands under the CWA in United States v. Wilson, 133 F.3d 251 (4^th Cir. 1997) and Nat’l Mining Assoc. v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998), the Virginia General Assembly enacted the Virginia Wetlands Resources Act of 2000, codified at Va. Code § 62.1-44.3, 44.5, 44.15, 44.15:5, 44.29 (2001), amending the definition of “State Waters” subject to regulation under the Virginia State Water Control Law (SWCL) to close the Tulloch loophole and provide that the SWCL governed “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth . . . including wetlands.” By so doing, Virginia provided that all wetlands, including so-called “isolated” wetlands, which are not subject to ACOE/EPA jurisdiction under the CWA, are protected by Virginia law.  See Va. Code § 62.1-44.3; see also Treacy v. Newdunn Assocs., 344 F.3d 407 (4^th Cir. 2003).

As a result, Sackett will not have a significant impact on wetlands permitting in jurisdictions like the Commonwealth because, even though Sackett restricts the Corps’ and EPA’s authority over tidal, jurisdictional wetlands subject to the CWA, it does not impact Virginia’s jurisdiction over non-tidal, isolated wetlands which are still regulated by the Virginia State Water Control Law. Still, the Sackett decision may well have a secondary (and significant) effect, the extent of which is not yet known. Under NEPA, federal agency action which threatens “major” impact on the environment triggers the requirement that an applicant prepare an ofttimes time-consuming and expensive environmental impact statements (EIS).  In the past, a Corps/EPA decision on an application for a CWA wetlands permit frequently resulted in imposition of the requirement the applicant perform an EIS. Since Sackett clearly reduces the scope of wetlands subject to federal permitting requirements under the CWA, it appears the decision will correspondingly reduce the number of federal wetlands permit applications triggering an EIS. In this respect, even in jurisdictions like Virginia, which will continue to regulate isolated wetlands under state law, Sackett offers to relieve farmers, developers, and businesses of layers of costly federal regulations, provided you know how to navigate the overlapping rubrics of state and federal law.

Please contact a member of the Woods Rogers Vandeventer Black Environmental Team to ensure you are fully apprised of the state and federal regulations governing wetlands which affect your homes and businesses.