By Marc Markel and Himesh Gandhi

A recent landmark Supreme Court decision is set to have long-lasting effects on environmental regulations over water, particularly wetlands, and how landowners can develop their land. Sackett v. Environmental Protection Agency (EPA) has effectively retooled the Clean Water Act’s role in land development and what constitutes the “waters of the United States.”

Sackett v. EPA reached the Supreme Court after a 15-year legal battle. The case centered on an Idaho couple looking to develop land near a popular lake in the Idaho panhandle. In developing the lot, the Sacketts began filling the area with gravel. After neighbors’ complaints, the EPA stepped in to halt construction and ordered the Sacketts to remove the gravel declaring the area a federally protected wetland under the authority granted to it by the Clean Water Act. The Sacketts filed suit against the EPA in 2008 and it has taken over 14 years to reach a Supreme Court decision. One of the primary arguments of the Sacketts’ attorneys was the land was not a protected water of the United States and subject to regulation because there was dry land between the Sacketts’ land and the lake.

In a 5-4 decision, the Justices sided with the Sacketts ruling that a wetland must be connected at the surface to another body of federally protected water to merit the same protection as the waters of the United States. Within the ruling, the majority cited that the term “adjacent” in this use equates to adjoining. What does this mean for land development moving forward?

When developing land, near lakes, rivers, streams and oceans, wetland areas must be connected at the surface to these flowing bodies of water to come under the protection of the EPA. The land that is not connected may be developed. It is important for developers to remember to check with their legal counsel on these types of bodies of water to ensure federal laws are being followed properly and costly fines and construction costs can be avoided.