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Wetlands are a particularly important and fragile ecological resource. In recognition of that, the federal government has long interpreted the Clean Water Act broadly to protect not only wetlands that are directly connected to traditional waterways but also those more remote wetlands that have some connection to such waterways.\u00a0 In Sackett v. EPA<\/em>, the Supreme Court ended federal protection for more remote wetlands.\u00a0 The consequences of the decision for proponents of infrastructure projects will vary by state.\u00a0 In Virginia, save for one class of project, the consequences, on paper at least, should be minimal.<\/p>\n Broadly speaking, the Clean Water Act prohibits the discharge of a pollutant to the navigable waters.\u00a0 The term \u201cnavigable waters\u201d is defined in the statute to mean \u201cthe waters of the United States, including the territorial seas.\u201d\u00a0 As this is not exactly the most illuminating definition, the two agencies charged with enforcing the Clean Water Act, the Environmental Protection Agency and the U.S. Army Corps of Engineers, have stepped in at various points to define what \u201cwaters of the United States\u201d means.\u00a0 Though the definition changed over time, it was always fairly expansive.\u00a0 As relevant here, the term included all waters that could affect interstate or foreign commerce.\u00a0 The definition explicitly included wetlands \u201cadjoining\u201d other waters.\u00a0 The term \u201cadjoining\u201d was given a broad definition so that any wetland that had a nexus to a traditional \u201cwater\u201d was regarded as being within the coverage of the Clean Water Act.\u00a0 The agencies explicitly recognized that all wetlands within the United States, no matter how remote from traditional waters, could arguably be covered under this definition.<\/p>\n Enter the Sacketts.\u00a0 They are a couple in Idaho who purchased a plot of land that included wetlands in 2004.\u00a0 The Sacketts began filling the wetlands on their land so that they could build a house on it.\u00a0 The EPA informed the Sacketts that their lot included protected wetlands and ordered them to undertake a restoration plan or else face fines of up to $40,000 per day.\u00a0 Under the EPA\u2019s view, the wetlands on the Sackett property were \u201cadjacent\u201d to a nearby lake because the wetlands were on the other side of a road from an \u201cunnamed tributary\u201d (elsewhere in the opinion characterized as a ditch) that flowed into a non-navigable creek that itself flowed into the lake.\u00a0 The Sacketts sued the EPA under the Administrative Process Act, arguing that the EPA lacked jurisdiction because their property did not include \u201cwaters of the United States.\u201d<\/p>\n At the Supreme Court, every justice agreed that EPA\u2019s interpretation went too far and that the wetlands on the Sacketts\u2019 property were not \u201cwaters of the United States.\u201d\u00a0 The majority held that \u201cwaters of the United States\u201d referred to a relatively permanent body of water connected to traditional interstate navigable waters.\u00a0 This would likely include lakes, rivers, and creeks that are tributaries of navigable waters.\u00a0 Only those wetlands that are \u201cadjacent\u201d to such waters are subject to regulation under the CWA.\u00a0 The majority held that \u201cadjacent\u201d means that the wetlands have a continuous surface connection with the water so that it is difficult to distinguish between the water and the wetland.\u00a0 Justice Thomas wrote separately to emphasize that \u201cwaters of the United States\u201d must be interstate waters, so that wholly intrastate waters would be excluded from regulation under the Clean Water Act under his reading.\u00a0 Other justices wrote separate concurring opinions to argue that wetlands separated from a traditional water by a natural or man-made barrier should still be considered to be \u201cadjacent.\u201d<\/p>\n The result of this holding is that fewer wetlands are subject to federal regulation.\u00a0 State regulation of wetlands were left untouched.\u00a0 Protections afforded more remote wetlands will therefore vary state by state.<\/p>\n In Virginia, all wetlands are subject to regulation by the Department of Environmental Quality, and tidal wetlands are regulated by localities or, if the locality has not adopted a model ordinance, the Virginia Marine Resources Commission.\u00a0 In the wake of the Sackett <\/em>ruling, DEQ has promulgated a guidance document that assures the public that its authority to regulate wetlands under state law is expansive and continues uninterrupted.\u00a0 The guidance, a copy of which can be found here<\/a>, notes that Virginia will continue to require delineations of wetlands and surface waters along with applications for its permits, which are still generally required to the same extent as they were before Sackett<\/em>.\u00a0 It also provides some indication of the strategy it will use to handle the anticipated increased workload.\u00a0 Thus, for most infrastructure projects that will cross wetlands, the same joint permit application with the same wetlands delineations will be required and should be submitted to the appropriate state agencies for processing.<\/p>\n The one exception to this will be interstate natural gas pipelines.\u00a0 The Natural Gas Act preempts state-level environmental regulation of interstate natural gas pipelines, though it preserves state authority to regulate such pipelines pursuant to \u00a7 401 of the Clean Water Act.\u00a0 Under that authority, Virginia DEQ had the authority to review all pipeline crossings of wetlands in the state.\u00a0 Now, with the more limited scope of the Clean Water Act, it is doubtful that DEQ could review crossings of remote wetlands.<\/p>\n As the agencies with responsibility for regulating wetlands at the state and federal level continue to digest Sackett<\/em>, more guidance on this topic will surely follow.<\/span><\/p>\nMatt Hull<\/a> is a Pender & Coward attorney focusing his practice on eminent domain\/right of way<\/a>, local government, and waterfront law matters. <\/em>\n