Mar 29, 2023 | ALI CLE, Real Estate, The Practical Real Estate Lawyer

A wetland is an area of land that is either covered by water or saturated with water for at least part of the year. The depth and duration of this seasonal flooding varies. There are various types of wetlands, generally categorized as either freshwater wetlands or tidal wetlands. The water is typically groundwater seeping up from an aquifer or spring. A wetland’s water can also come from a nearby river, lake, or sea, especially in coastal areas that experience strong tides. Wetlands are transition zones; they are neither totally dry land nor totally underwater but have characteristics of both.

The saturation of wetland soil determines the vegetation that surrounds it. Plants that live in wetlands, which are called hydrophytes, are uniquely adapted to their watery (hydric) soil. Seasonally dry wetlands or wetlands with slow-moving water can often support trees and other sturdy vegetation. More frequently flooded wetlands have mosses or grasses as their dominant hydrophytes.1

Wetlands may be regulated by the federal government under the Clean Water Act2 (CWA), which prohibits the discharge of pollutants, including rocks and sands, into “navigable waters,” or by a state. In New York, for instance, the Department of Environmental Conservation regulates freshwater wetlands and tidal wetlands and requires that a proposed activity be approved and a permit issued.

On October 3, 2022, the Supreme Court heard argument in Sackett v US Environmental Protection Agency to determine the proper test for determining whether wetlands are “waters of the United States” under the CWA.3 The Sacketts bought their land in 2004 in a subdivision near Priest Lake, Idaho and obtained the necessary permits to build a modest three-bedroom family home. Shortly after they began construction in 2007, EPA officials demanded they stop, alleging that their land was a protected wetland under federal jurisdiction. The EPA’s compliance order claimed the construction violated the CWA because their property was a federally regulated “navigable water.”

In earlier litigation, the Sacketts won the right to challenge the EPA’s order in a court of law. When their litigation simply languished in lower courts, the Sacketts’ counsel, Pacific Legal Foundation, returned to the Supreme Court asking the Court to clarify the scope of the EPA’s regulatory powers under the CWA. At stake is whether the EPA can expand the definition of “navigable waters” which limits the EPA’s authority to include any semi-soggy parcel of land.

The term “navigable waters” was defined by a plurality of the Supreme Court in Rapanos v United States4 as traditional navigable water capable of use in interstate commerce and non-navigable but relatively permanent rivers, lakes, and streams as well as abutting wetlands with a continuous surface water connecting to traditional navigable waters.

The logic of the designation of the Sacketts’ property as “navigable waters” is difficult to follow. The property is across the street from Priest Lake, which is navigable water. There is no water path from the lake to the Sacketts’ parcel. A 30-foot-wide paved road separates the land and lake from the Sacketts’ property. The EPA acknowledges that there is no stream, river, lake, or similar water body on the parcel. It also acknowledges that there is no surface-water connection between the Sacketts’ lot and the wetlands complex on the other side of the road. Yet, the EPA and the Ninth Circuit nevertheless concluded that the Sacketts’ lot was similarly situated to those across-the-street wetlands.

The Sacketts argue that the Court should adopt a test, proposed by a four-justice plurality in Rapanos, that would only allow the EPA to regulate wetlands that have a continuous surface water connection to regulated waters. The EPA contends that the Court should apply the “significant nexus” test suggested by Justice Kennedy in a concurring opinion in Rapanos: (i) whether there is a “significant nexus” between the wetland and the navigable waters that are covered by the CWA; and (ii) whether the wetlands “significantly affect” the quality of those waters.

The decision in Sackett is expected by June 2023.

New York Wetlands

In New York, wetlands are delimited and marked first by examining available maps, aerial photos, and soil sample survey maps. Then an inspection is performed, during which the vegetation, water, and soils on the site are examined and soil borings are taken. The boundary is flagged by placing sequentially numbered flags at various points on the boundary line. The flagged boundary is transferred to a survey map. The law then provides a 100-foot protective buffer which is a “wetlands adjacent” area.5
New York’s definition of adjacent fresh water wetlands is much more specific than the EPA’s proposed “significant nexus” test, defining an “adjacent area” as:

[A]ny land immediately adjacent to a tidal wetland within whichever of the following limits is closest to the most landward tidal wetland boundary…:

(i) 300 feet landward of said most landward boundary of a tidal wetland, provided, however, that within the boundaries of the City of New York this distance shall be 150 feet (see figure 1); or

(ii) to the seaward edge of the closest lawfully and presently existing (i.e., as of August 20, 1977), functional and substantial fabricated structure (including, but not limited to, paved streets and highways, railroads, bulkheads and sea walls, and rip-rap walls) which lies generally parallel to said most tidal wetland landward boundary and which is a minimum of 100 feet in length as measured generally parallel to such most landward boundary, but not including individual buildings (see figure 2); or

(iii) to the elevation contour of 10 feet above mean sea level, except when such contour crosses the seaward face of a bluff or cliff, or crosses a hill on which the slope equals or exceeds the natural angle of repose of the soil, then to the topographic crest of such bluff, cliff, or hill (see figures 3 and 4). Pending the determination by the commissioner in a particular case, the most recent, as of the effective date of this Part, topographical maps published by the United States geological survey, Department of the Interior, having a scale of 1:24,000, shall be rebuttable presumptive evidence of such 10 foot elevation.6

CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.