The Corps of Engineers refuses to accept the Supreme Court’s decision in Sackett v. EPA, which substantially reduces the scope of Corps’ jurisdiction over ‘adjacent wetlands.’ The Corps’ “unwillingness to concede its lack of regulatory jurisdiction” prompted the Fifth Circuit to emphatically state “enough is enough” in a recent decision related to adjacent wetlands. 

The Clean Water Act regulates the discharge of dredged or fill material into navigable waters.  42 USC §1344(a) (Section 404).  Navigable waters are defined as “the waters of the United States, including the territorial seas.”  42 USCA §1362(7).  

In Sackett, the Supreme Court held that Corps’ jurisdiction under the Clean Water Act “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.” Sackett, 143 S. Ct. at 1344.  The Court also explained that the Corps must establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States,’(i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Sackett, 143 S. Ct. at 1341.

The Corps has refused to accept this holding and the limitations on its jurisdiction as established by the Supreme Court.  The Corps’ current position is that a ‘continuous surface connection’ exists when wetlands are connected to a jurisdictional water by a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert.  Further, a continuous surface connection does not require a constant hydrologic connection.  The EPA and Corps echoed this view in guidance released in November 2023 in the form of a PowerPoint presentation.  

However, there are two problems with the Corps’ current position.  First, the case relied on by the Corps in the November 2023 Guidance does not support its claim.  Second, the Fifth Circuit just held that the Corps’ November 2023 Guidance on this point is wrong.  

In the November 2023 Guidance, at p. 48, the EPA and the Corps rely on “prior EPA practice” and a Sixth Circuit case, US v. Cundiff, 555 F3d 200 (6 Cir. 2009), for this position.  However, that case does not specifically make that statement.  The Court actually stated: “Although the term ‘continuous surface connection’ clearly requires surface flow, it does not mean that only perpetually flowing creeks satisfy the plurality’s test.” Cundiff, 555 F3d at p. 212.  The Court went on to discuss seasonal flow “and like water bodies.” Waterways with seasonal flow can be relatively permanent waterways.  Further, one waterway, the South Channel, provided a continuous surface connection between the wetlands at issue and a traditional waterway (the South Channel had flow for all but a few weeks a year).  So, the EPA’s and Corps’ statements regarding non-jurisdictional waters based on Cundiff, if any, are likely dicta.  

On Dec. 18, 2023, the Fifth Circuit decided the case of Lewis v. US (2023 WL 8711318), which negates the EPA’s and Corps’ position in the Fifth Circuit.  Wetlands on two tracts in Livingston Parish were at issue.  The tracts are described as grass-covered, majority dry fields with gravel, logging, and timber roads on the sides of each tract.  The owners harvested and managed timber on the tracts.   As to the first tract (the east tract), waters flowed through roadside ditches to an unnamed tributary (which flowed intermittently), to Colyell Creek (a relatively permanent waterway), and then to Colyell Bay, a traditional navigble waterway about ten to fifteen miles away.  As to the second tract (the west tract), water flowed through roadside ditches to Switch Cane Bayou, to Colyell Creek, and then Colyell Bay. 

At the district court level (2020 WL 4798496), the court was reviewing an approved jurisdictional determination (AJD) initially issued in 2017 after an administrative appeal.  The 2017 AJD found jurisdictional wetlands, noting the above connections to the traditional navigable waterway.  The Plaintiffs argued that there was no jurisdiction under Rapanos (including the Scalia test as to adjacency).  At some point in the district court proceedings, the Corps “acknowledged that the land in question does not meet the adjacency requirement set forth under the Scalia test. Accordingly, it provides no basis for CWA jurisdiction.”  The district court also found that there was no jurisdiction under the significant nexus test.  The matter was remanded back to the Corps. 

After remand, the Corps applied the 2020 Navigable Waters Protection Rule to the wetlands on both tracts.  The Corps indicated in a 2020 AJD that there were no jurisdictional wetlands on the west tract but found wetlands on the east tract by “connecting (a) roadside ditches and (b) a culvert to (c) an unnamed non-‘relatively permanent water’ tributary, then to (d) Colyell Creek (a ‘relatively permanent water’) several miles away, and ultimately to (e) the traditionally navigable waterway of Colyell Bay ten to fifteen miles from the Lewis property.” 

Upon review by the Fifth Circuit and based on these facts, the Court found: “There is no ‘continuous surface connection’ between any plausible wetlands on the Lewis tracts and a ‘relatively permanent body of water connected to traditional interstate navigable waters.’ Recall that the nearest relatively permanent body of water is removed miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary. In sum, it is not difficult to determine where the ‘water’ ends and any ‘wetlands’ on Lewis’s property begin—there is simply no connection whatsoever. There is no factual basis as a matter of law for federal Clean Water Act regulation of these tracts.”  Thus, the Fifth Circuit found no continuous surface connection, even though there was a ditch, a culvert, and a non-relatively permanent tributary. 

The Lewis decision highlights several important points.  First, the Corps admitted under these facts that there was no jurisdiction under the Scalia test in Rapanos (the very same test adopted in Sackett).  Second, there was no continuous surface connection even when water may flow through ditches, a culvert, and a non-relatively permanent tributary.  Finally, the Sackett holding relating to a determination of where waters ends and wetlands begins was specifically incorporated into the Lewis decision.

As a result of the Lewis decision, non-jurisdictional features (ditches, culverts) and non-relatively permanent waterways are not continuous surface connections and cannot serve to link wetlands on a property to a relatively permanent waterway.  On this point, the November 2023 Guidance is not consistent with the Fifth Circuit’s strict and straightforward application of Sackett in the Lewis decision.