A Virginia Wetlands Case Tests the Limits of Sackett

The Landmark Case of Sackett v. EPA

In May 2023 the U.S. Supreme Court, in the case of Sackett v. EPA, eliminated the federal government’s ability to regulate a certain category of wetlands.  The Court there ruled that “isolated” wetlands, meaning those wetlands that are not adjacent to traditional navigable waters, are not part of the “waters of the United States” and, hence, not subject to the requirements of the federal Clean Water Act.  When it comes to wetlands, the Court held that federal Clean Water Act requirements apply only to those wetlands having a “continuous surface connection” to traditional navigable waters.  Note that some states, Virginia among them, retain jurisdiction to regulate isolated wetlands (in addition to adjacent wetlands), but this ability rests on state law, as opposed to the federal Clean Water Act.  For a deeper dive into the Sackett decision, and the events leading up to it, you should read my June 2023 blog article and listen to my September 2023 podcast. 

Property Owner Clears 21 Acres of Wetlands in Ashland, Virginia, Without a Permit

Well before the Supreme Court decided Sackett, the owner of a 102-acre forested, undeveloped, parcel in Ashland, Virginia, began clearing the land.  The nearest traditional navigable waters were the Chickahominy River, located four miles from the site, and the Pamunkey River, 7 miles away.  Beginning in 2019, and continuing for the next two years, the owner used earthmoving equipment, to include bulldozers, to clear and grub 21 acres of wetlands.  The government characterizes wetlands at issue in the case as connecting to one or the other river by way of “relatively permanent” tributaries and “relatively permanent” creeks.  These wetlands would have been subject to federal jurisdiction prior to Sackett, when courts used the “significant nexus” test, which looked to the environmental relatedness of these isolated wetlands to the two rivers, as opposed to requiring a “continuous surface connection” between them.  Even so, the owner cleared the wetlands without seeking a permit.  The owner likewise proceeded in the face of multiple warnings given him by the Virginia Department of Environmental Quality, the U.S. Army Corps of Engineers, and the U.S. EPA. 

Shutterstock: Pavel Klimenko

The United States Files Suit Against the Property Owner

In November 2023 the United States filed suit in the U.S. District Court in Richmond, Virginia to force the property owner to restore the wetlands, to collect a civil penalty from the property owner, and to require the property owner to reimburse the United States for the legal fees the government expends in prosecuting the suit.  The style of the case is U.S. v. Chameleon LLC and Layne.  I have attached a copy of the complaint here.  The EPA issued a press release when suit was filed; it can be seen here. 

U.S. v. Chameleon LLC and Layne Tests the Limits of Sackett

Mindful that Sackett forbids the federal government from regulating wetlands that lack a “continuous surface connection” to traditional navigable waters, the challenge confronting the United States in U.S. v. Chameleon LLC and Layne is to persuade the Court that the “relatively permanent” series of unnamed tributaries and creeks which connect the wetlands to the Chickahominy and Pamunkey Rivers, respectively, create the requisite “continuous surface connection”.  Chameleon, LLC and Mr. Layne attacked the government on exactly this point when, right at the start of the case, they responded to the complaint with a Motion to Dismiss, claiming that the wetlands they disturbed have no “continuous surface connection” to the two rivers.  The brief that they filed in support of their Motion to Dismiss can be seen here. 

The government’s brief opposing the Motion to Dismiss can be seen here.

The rules of court give the property owner the right to file the final brief in relation to the motion, because the property owner is the moving party.  The property owner’s final brief, filed in support of its Motion to Dismiss, can be seen here.

The Court held a hearing on the motion in early April.  A decision is expected soon. 

Shutterstock: Balounm

Outlook

Our experience in representing a recent client on a wetlands matter in a post-Sackett world suggests that the U.S. Army Corps of Engineers, Norfolk District, which administers the federal wetlands program for all of Virginia, appears comfortable taking a narrow interpretation of Sackett.  In our client’s case, the Army Corps of Engineers asserted jurisdiction over an isolated wetland located two miles from the nearest traditional navigable water, the Potomac River.  The wetlands in our client’s case, similar to the wetlands at issue in U.S. v. Chameleon LLC and Layne, connect to the river through a series of tributaries and creeks that may or may not provide a “continuous surface connection”.  The result in U.S. v. Chameleon LLC and Layne will either encourage the U.S. Army Corps of Engineers to continue regulating wetlands of this type or it will cause the Army Corps to redirect its resources to wetlands adjacent to traditional navigable waters.

Conclusion

The attorneys on our Waterfront Property Law Team have strong connections and significant legal experience.  As you can tell from the time a few years ago when one of our attorneys stripped off his shoes and got in the water to fend off a criminal enforcement action being filed against our client, we go the extra mile for our clients, if that is what is needed to get the job done.    

Contact Jim Lang if you would like to see him publish more information on the law of wetlands regulation. Of course, you can always contact Jim for his advice and assistance in connection with needs specific to your particular situation.