After a nearly two-decades-long dispute about whether the Sackett family violated the Clean Water Act’s stringent dredge and fill provision in the process of constructing their single-family, Idaho home, the United States Supreme Court has finally provided clarity about which land and water features can be regulated under the federal Clean Water Act.

Overview of The Clean Water Act

The Clean Water Act regulates “waters of the United States,” which includes:

“[w]aters which are [c]urrently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; [t]he territorial seas; or [i]nterstate waters, including interstate wetlands[.]”

Historic and repeated confusion arose in interpreting the provision defining regulated wetlands, which may be part of “waters of the United States.” At the time the litigation involving the Sackett’s began, the Environmental Protection Agency identified regulated wetlands by applying the “Significant Nexus Test'' which instilled broad regulation of any land or water feature that tipped the scales toward impacting waters as described in the Act. Regulators evaluated a wetland’s characterization by considering several, open-ended, hydrologic and geologic factors. These vague and discretionary categorization criteria did not improve with the United States Supreme Court decision in Rapano v. United States, where the Supreme Court extended regulation to include any property contiguous to the waters of the United States, when it has land features that promote stormwater drainage or intermittent flow into the waters of the United States.

The Sackett Court clarifies that the Environmental Protection Agency only has jurisdiction over wetlands under the Clean Water Act if the “‘wetlands [have] 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.” This significantly limits the Environmental Protection Agency’s previously broad jurisdiction.

These clarifications do not change the procedural and substantive legislative enforcement in Michigan. In 1977, the federal government amended the Clean Water Act’s dredge and fill permitting section (Section 404) — shifting the permitting power for these activities, in some circumstances, from a federal regulatory power to a state regulatory power, enforced by the Michigan Department of Environment, Great Lakes, and Energy (MDEGLE). Through legislative development and evolution, Michigan’s statutes, including the Goemaere-Anderson Wetland Protection Act, essentially superseded the Environmental Protection Agency’s permitting power and is now the primary wetland regulation in Michigan. Therefore, Michigan property owners and developers must continue to comply with Michigan’s Natural Resources Environmental Protection Act (NREPA), regardless of the United State Supreme Court’s decision in Sackett.

Contact the Environmental Attorneys at Kuhn Rogers PLC Today

If you have questions regarding your rights under state and federal wetland laws, consult with one of our highly qualified and experienced attorneys. Kuhn Rogers PLC has vast experience in wetland development and other environmental law issues unique to Michigan.