Will Change Federal Permitting for Construction Projects
In a long-awaited decision on May 25, the U.S. Supreme Court unanimously decided in favor of landowners on a case (Sackett v. U.S. Environmental Protection Agency) that hinges on federal limits over waters and wet areas. 黑料不打烊 submitted a friend of the court brief in support of the Sacketts. The decision aligns with 黑料不打烊鈥檚 brief, and the Justices acknowledge the need for clarity due to the severity of criminal sanctions under the Clean Water Act, a key issue that 黑料不打烊 raised. The Court roundly rejects the use of the flawed 鈥渟ignificant nexus鈥 test for determining when projects require a federal permit and establishes a new test for evaluating when a wetland is a waters of the United States (WOTUS).
Click here to read an analysis of the Sackett v. EPA decision.
states that EPA鈥檚 鈥溾檚ignificant nexus鈥 theory is particularly implausible鈥 and that 鈥淓PA has no statutory basis to impose it.鈥 This decision throws the Biden Administration鈥檚 new rule into question鈥攁s it heavily relies on significant nexus. It also bolsters 黑料不打烊鈥檚 ongoing legal challenges to that rule, which have already halted its implementation in more than half the states.
The majority opinion outlined a test for determining when an adjacent wetland would fall under federal jurisdiction based on prior Supreme Court decisions. First, the water adjacent to the wetland has to be a WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters). Secondly, 鈥渢he wetland has a continuous surface connection with that water, making it difficult to determine where the 鈥榳ater鈥 ends and the 鈥榳etland鈥 begins.鈥
Challenges Ahead
The federal agencies now have to determine how to apply the new test and figure out if any of the Biden Administration鈥檚 rule can still stand now that the 鈥渟ignificant nexus鈥 test is off the table. Currently, the Biden Administration鈥檚 rule is on hold in 27 states; however, the 鈥渟ignificant nexus鈥 test predates that rule. This means all projects in the U.S. are using the 鈥渟ignificant nexus鈥 test in some form to determine whether a federal water permit is needed. Contractors can expect some confusion in the short term. 黑料不打烊 will continue to challenge the rule and work to provide clarity for permitting decisions.
All justices decided in favor of the Sacketts, although the court was split on reasoning. Justice Alito wrote the majority opinion (5-4). No justices dissented. For more information, contact Leah Pilconis at leah.pilconis@agc.org or Melinda Tomaino at Melinda.tomaino@agc.org.