September 2023 - Parks & Recreation - 33

had been navigable in fact or which
could reasonably be so made. "
As a result, the Court held " the
use of 'navigable' signals that the
definition principally refers to bodies
of navigable water like rivers,
lakes, and oceans. " Moreover, the
Court noted Congress had " employed
the term 'waters' elsewhere
in the CWA " repeatedly using the
term " waters "
in " contexts
that
confirm the term refers to bodies
of open water " with conventionally
understood " hydrographic features "
like " rivers " and " streams. "
CWA State Responsibility
The EPA had argued that CWA " waters "
is " naturally read to encompass
wetlands " because the " presence of
water is 'universally regarded as the
most basic feature of wetlands.' "
The Court, however, rejected the
notion that the CWA effectively extended
the EPA's jurisdiction " over
anything defined by the presence of
water. " In so doing, the Court noted
the CWA expressly " protects the
primary responsibilities and rights of
States to prevent, reduce, and eliminate
pollution, " as well as " to plan
the development and use of land and
water resources " :
In 1977, Congress amended the
CWA to authorize the States to administer
EPA approved programs
to issue permits for the discharge
of dredged or fill material into
U.S. waters which were not " traditional
navigable waters, " including
adjacent wetlands.
Qualifying CWA Wetlands
While " the ordinary meaning of
waters " in the CWA " might seem
to exclude all wetlands, " the Court
acknowledged " at least some wetlands
must qualify as 'waters of
the United States.' " Specifically,
to qualify as " the waters of the
United States, " the Court would
require these wetlands to be " indistinguishably
part of a body of
water that itself constitutes 'waters'
under the CWA. "
Accordingly, the Court held:
" Wetlands that are separate from
traditional navigable waters cannot
be considered part of those waters,
even if they are located nearby. "
Further, the Court recognized the
Corps jurisdiction was limited
to wetlands that actually abutted
on a navigable waterway and
could reasonably determine that
wetlands
" adjoining
bodies
of
water " were part of those waters.
That being said, the Court would
defer to " the Corps' decision to
regulate wetlands actually abutting
a navigable waterway, " recognizing
" the inherent difficulties of defining
precise bounds to regulable
waters. " In so doing, the Court
noted " the transition from water to
solid ground is not necessarily or
even typically an abrupt one due to
semi-aquatic features like shallows
and swamps. "
The Court, therefore, determined
wetlands only occur within the context
of the CWA when there is " a
continuous surface connection to
bodies that are 'waters of the United
States' in their own right, so that
there is no clear demarcation between
'waters' and wetlands. " The
Court, however, recognized this
formulation of wetlands within the
context of the CWA also would include
" temporary interruptions in
surface connection may sometimes
occur because of phenomena like
low tides or dry spells. " As a result,
the Court held " the CWA extends
to only those wetlands that are as
a practical matter indistinguishable
from waters of the United States. "
To
assert
federal
jurisdiction
under the CWA, the EPA and the
Corps would, therefore, have to
establish that wetlands were adjacent
to a " relatively permanent
body of water connected to traditional
interstate navigable waters "
and " the wetland has a continuous
surface connection with that
water, making it difficult to determine
where the 'water' ends and
the 'wetland' begins. "
Conclusion
Having found the CWA 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 concluded
" the wetlands on the Sacketts'
property are distinguishable from
any possibly covered waters " and
not subject to CWA " dredge and
fill " permit regulations. As a result,
the Court reversed " the judgment
of the U.S. Court of Appeals for
the Ninth Circuit and remanded
the case for further proceedings
consistent with this opinion. "
See also: Denial of Permit to Develop
Coastal Wetland, An Unconstitutional
Taking?, James C. Kozlowski, Parks
& Recreation, June 1995, Vol. 30, Iss. 6,
tinyurl.com/2rww5526; Clean Water
Act Permit Ignored Adverse Impacts on
Park Environment, James C. Kozlowski,
Parks & Recreation, November
1993, Vol.
28, Iss. 11, tinyurl.com/
3tdweuue.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Professor
Emeritus in the School of Sport, Recreation and Tourism
Management at George Mason University (jkozlows@gmu.
edu). Webpage link to an archive of articles (1982 to present):
mason.gmu.edu/~jkozlows/lawarts/artlist.htm.
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http://tinyurl.com/2rww5526 http://tinyurl.com/3tdweuue http://tinyurl.com/3tdweuue https://mason.gmu.edu/~jkozlows/lawarts/artlist.htm
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