September 2023 - Parks & Recreation - 29

of the CWA was to mitigate the
nationwide water pollution problem
by prohibiting " the discharge
of any pollutant " into " navigable
waters. " 33 U. S. C. §§1311(a),
1362(12)(A). In addition to contaminants
like " chemical wastes, "
the CWA defined " pollutant " very
broadly to include more mundane
materials,
like " rock, sand " and
" cellar dirt. "
The Environmental
Protection
Agency (EPA) and the Corps jointly
enforce the CWA. The Corps
controls permits for the discharge
of dredged or fill material into
" waters of the United States. " The
EPA is tasked with policing violations
after the fact, either by issuing
orders demanding compliance
or by bringing civil actions.
Property owners who violate the
CWA by negligently discharging
" pollutants " into covered waters
may face severe criminal penalties,
including
imprisonment.
tained
protected wetlands. The
EPA demanded the Sacketts immediately
" undertake activities to restore
the Site " pursuant to a " Restoration
Work Plan " that the EPA
had provided. The order threatened
the Sacketts with penalties of
more than $40,000 per day if they
did not comply.
These
penalties increase for knowing violations.
On the civil side, the CWA
may impose more than $60,000 in
fines per day for each violation.
Facts of the Case
In this particular case, the EPA
had found Plaintiffs Michael and
Chantell Sackett in violation of
the CWA for illegally dumping soil
and gravel onto " the waters of the
United States. "
In 2004, Plaintiffs had purchased
a small lot near Priest Lake in Bonner
County, Idaho. In preparation
for building a modest home, they
began backfilling
their
property
with dirt and rocks. A few months
later, the EPA sent the Sacketts a
compliance order informing them
that their backfilling violated the
CWA because their property conAccording
to the EPA, the " wetlands "
on the Sacketts' lot were
" adjacent to " (in the sense that
they are in the same neighborhood
as) what it described as an
" unnamed tributary " on the other
side of a 30-foot road. That tributary
fed into a non-navigable
creek, which, in turn, feeds into
Priest Lake, an intrastate body of
water that the EPA designated as
traditionally navigable.
To establish the required " significant
nexus " under the applicable
CWA regulation, the EPA had
lumped the Sacketts' lot together with
the Kalispell Bay Fen, a large nearby
wetland complex that the agency
regarded as " similarly situated. " According
to the EPA, these properties,
taken together, " significantly affect "
the ecology of Priest Lake.
Administrative Procedure
Act Claim
The Sacketts filed suit under the
Administrative Procedure Act
(APA), 5 U. S. C. §702 et seq., alleging
the EPA lacked jurisdiction
because
property were not " waters of the
United States "
subject to CWA
" dredge and fill " permit regulation.
Under
the
standard
of
agency
judicial
expertise,
a
APA deferential
review,
federal court generally will affirm
an agency decision within an area
of
unless
the
challenger can prove the agency
action was arbitrary and capricious,
an abuse of discretion, or otherwise
not in accordance with law.
In this particular instance, the
federal district court had deferred
to the agency's wetland designation
and granted summary judgment
in favor of the EPA. On appeal,
the Ninth Circuit affirmed,
holding " the CWA covers adjacent
wetlands with a significant nexus
to traditional navigable waters and
that the Sacketts' lot satisfied that
standard. " The Supreme Court
granted certiorari to review the decision
by the lower courts and " decide
the proper test for determining
whether wetlands are 'waters of the
United States' " under the CWA.
CWA Significant Nexus
Standard
As noted by the Court, the EPA
regulations had interpreted
" the
waters of the United States " to
include " all waters " that " could
affect
interstate or foreign commerce, "
as well as " wetlands adjacent "
to those waters. 40 CFR
§§230.3. " Adjacent " was defined
in the regulation to mean not just
" bordering " or " contiguous, " but
also " neighboring. "
This
regulatory definition
of
any wetlands on their
" adjacent " included wetlands that
were separated from covered waters
" by man-made dikes or barriers,
natural river berms, beach
dunes and the like. " In addition,
the regulation specified that " wetlands "
was a " technical term " that
encompassed the following:
[T]hose areas that are inundated
or saturated by surface or
ground water at a frequency and
duration sufficient to support, and
that under normal conditions do
support, a prevalence of vegetation
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| Parks & Recreation
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September 2023 - Parks & Recreation

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