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ALF Urges Supreme Court To Avoid “Takings” Issues When Interpreting Scope Of Clean Water Act

The U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers impose onerous Clean Water Act permitting requirements in connection with discharge of dredged or fill material on private property that those agencies deem wetlands encompassed by “the waters of the United States”—the vague phrase that Congress chose to define “navigable waters” subject to the Act’s pollutant discharge prohibitions. For decades the Supreme Court, as well as EPA and the Corps, have struggled to devise a clear, workable test for determining when a putative wetland is part of “the waters of the United States,” and thus subject to Clean Water Act permitting requirements. In Sackett v. EPA the Court has agreed to address this question again. The Atlantic Legal Foundation, joined by Conservatives for Property Rights and the Committee for Justice, has filed an amicus brief arguing that the Court should avoid any statutory interpretation of “the waters of the United States” that has the potential for raising concerns about the regulatory “taking” of private property without just compensation in violation of the Fifth Amendment.

Issue Areas:

Property Rights

Read the Amicus Brief:
Question(s) Presented:

Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. §1362(7).

Additional Background:

The Petitioners are Idaho property owners who wish to construct a residence in a  built-out Idaho subdivision. After they began excavating and backfilling their property, which is not physically connected to a navigable body of water, EPA notified them that their property is a “wetland” subject to Clean Water Act regulation. An administrative compliance order directed them to restore their property to its natural state or incur substantial financial penalties. It is well settled that a “regulatory taking” in violation of the Fifth Amendment can occur where federal regulation deprives a property owner of any economically viable use of private property.

ALF’s Amicus Brief:

The amicus brief, drafted by ALF Executive Vice President & General Counsel Lawrence Ebner and Nancie Marzulla of Marzulla Law, LLC, argues that (i) Clean Water Act regulation of wetlands can raise Fifth Amendment takings concerns, and (ii) when interpreting the breadth of the statutory phrase “waters of the United States” as to wetlands,  the Court should apply the canon of constitutional avoidance. Under Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715, 723 (2006), only wetlands that have a continuous, physical, “surface connection” to navigable waters, so that there is no clear demarcation between waters and wetlands, are subject to Clean Water Act permitting requirements. In contrast, under Justice Kennedy’s separate opinion in Rapanos, which concurred only in the Supreme Court’s judgment, wetlands are subject to Clean Water Act permitting requirements if they have a “significant nexus “with navigable waters.  According to Justice Kennedy’s opinion, which the Ninth Circuit followed in Sackett, a wetland is subject to the Act, even where there is no physical connection to navigable waters, if it significantly affects the chemical, physical, and biological integrity of other waters subject to the Act.. ALF’s amicus brief argues that unlike the Rapanos plurality’s “surface connection” test, Justice Kennedy’s “significant nexus” test can raise Fifth Amendment takings concerns. The more disconnected a particular parcel of land is from “relatively permanent, standing, or continuously flowing bodies of water,” Rapanos, 547 U.S. at 732, the more likely is the property owner to develop the land unaware of the serious potential legal and financial risks.  And thus, there is a greater potential for an uncompensated taking, as well as for imposition of civil and criminal penalties, if the federal government suddenly claims that the landowner’s partially or fully developed property is a wetland subject to the Clean Water Act. On the other hand, where a wetland has a continuous, physical surface connection to navigable waters, uniformed development is unlikely. Under the modern canon of constitutional avoidance, a statutory interpretation that creates constitutional doubts, e.g., the significant nexus test, should be rejected in favor of an interpretation that does not, e.g., the surface connection test. The amicus brief urges the Court to hold that the Rapanos plurality’s surface connection test is one of the necessary and proper tests for determining whether particular wetlands are encompassed by “the waters of the United States” under the Clean Water Act.


The Supreme Court issued a favorable opinion on May 25, 2023.


Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation

Date Originally Posted: April 14, 2022

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