In late September, a federal judge for the Southern District of Florida recommended that an on-going case be resolved in favor of the defendant landowner who had been sued by the government for allegedly violating the Clean Water Act (“CWA”). Specifically, the government claimed that the landowner had discharged fill material into wetlands on his property while clearing vegetation to make way for agricultural activity. According to the judge, the case should be dismissed because, after last year’s Supreme Court decision Sackett v. EPA, 598 US 651 (2023), the wetlands at issue were not subject to CWA jurisdiction. As one of the first court opinions to interpret the Sackett ruling, this decision could prove instructive for how courts will address Sackett going forward.

Background

On May 21, 2021, the federal government initiated a lawsuit, USA v. Sharfi, No. 21-cv-14205 (S.D. Fla. 2021), against a private landowner in the state of Florida alleging that he had violated the CWA by polluting wetlands located on his property. The defendant disagreed, arguing that the government had failed to demonstrate that he had discharged any dredged or fill material into wetlands that fell under CWA jurisdiction. In 2022, the lawsuit was paused while the Supreme Court considered the Sackett case. When USA v. Sharfi resumed litigation, the defendant moved for judgment in his favor, arguing that the Sackett decision precluded the government from pursuing its claims. In compliance with local rules in the Southern District of Florida, the presiding judge referred the matter to a magistrate judge to review the arguments and offer recommendations. The reviewing judge has recommended that the case be resolved in favor of the defendant.

Clean Water Act

The CWA is the primary federal statute regulating water pollution in the United States. Under the CWA, it is a violation of federal law for any party to discharge pollutants from a point source into “navigable waters” without a permit. 33 U.S.C. § 1342. While the legal term “navigable waters” typically only applies to those waterways that can be used to facilitate interstate and foreign commerce, under the CWA the term “navigable waters” is specifically defined as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The term “waters of the United States,” or “WOTUS,” is critical to CWA implementation because it is those waters which are subject to CWA permitting requirements. However, Congress did not define the term in the text of the CWA, and instead left it up to the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“the Corps”) – the two agencies responsible for administering the CWA – to define the term.

In the five decades since the CWA was enacted, policymakers and courts have struggled to find a lasting definition for the term WOTUS. In particular, the degree to which wetlands should be included in the WOTUS definition has been a challenge for those tasked with interpreting the term. While courts have generally agreed that at least some wetlands are part of WOTUS, the various regulatory definitions that have been promulgated over the years have taken different approaches to wetlands jurisdiction. ALthough the Supreme Court has taken up the matter multiple times, those opinions have also failed to provide a clear approach. For a full timeline of the different WOTUS definitions, click here.

When the Supreme Court took up the Sackett case, they were once again asked to consider to what extent wetlands should be included in the WOTUS definition. In a ruling authored by Justice Alito, the Court held that the word “waters” in “waters of the United States” refers to those geographic features that are “described in ordinary parlance” as streams, oceans, rivers, and lakes, and that only those wetlands that are “indistinguishable” from such waters due to a “continuous surface connection” fall under CWA jurisdiction. While the ruling did not resolve every question about the definition of WOTUS, it did establish a bright-line legal standard about when a wetland falls under CWA jurisdiction. For a more in-depth look at Sackett, click here.

USA v. Sharfi

The defendant in USA v. Sharfi purchased the 10-acre property at the center of the dispute in 2017 with intentions to put the site to agricultural use. In 2018, the defendant began to clear vegetation from the site, build a perimeter road, level the surface area, and construct farm buildings. Early that year, the defendant also submitted a permit application to the Corps and hired an environmental consultant to delineate the geographic extent of wetlands located on the property. By 2021, a significant portion of the property had been cleared with the exception of an acre of wetlands which the defendant had fenced in. That year, the Corps initiated legal action against the defendant.

While all parties agreed that some wetlands were present on the property, the Corps and the defendant disagreed on the size of the wetlands and whether the wetlands fell under CWA jurisdiction. According to the Corps, the wetlands covered nearly all of the property and all fell under CWA jurisdiction. The defendant asserted that only one acre of the property was a wetland and that it fell outside of CWA jurisdiction.

Shortly after the lawsuit against the defendant was filed, the proceedings were put on hold as the Supreme Court took up the Sackett case. After the Court issued its ruling, the proceedings in USA v. Sharfi restarted. Both the federal government and the defendant filed motions for summary judgement. The court referred the matter to a magistrate judge to give a formal Report and Recommendation on whether the dispute should be resolved in favor of the defendant in light of the new standard put forth in Sackett. While the Report and Recommendation from the magistrate judge is not the final decision in the case, the presiding court will review the Report and Recommendation along with any opposition papers that parties may file in response and reach a final decision. In USA v. Sharfi, the Report and Recommendation concluded that the case should be resolved in favor of the defendant.

Recommendation from the Bench

In order to determine whether the Sackett ruling, which held that CWA jurisdiction only extended to those wetlands with a “continuous surface connection” that were “indistinguishable” from waters otherwise recognized as WOTUS, required USA v. Sharfi to be resolved in the defendant’s favor, the judge began by reviewing the property at the center of the dispute.

All parties to the lawsuit agree that the closest undisputed WOTUS to the defendant’s property is a creek located approximately two miles from the site. Various manmade channels and ditches connect to the creek and run near the defendant’s property. Just north of the defendant’s property is an east-west running ditch that joins the creek approximately two miles to the east of the property. Connected to that east-west oriented ditch is a north-south oriented ditch that runs along the western boundary of the defendant’s property. According to the judge, the parties all agreed that both the east-west ditch and the north-south ditch do not maintain the same level of water year-round and have a seasonal flow that increases during rainy months and dries out during the dry season. However, the parties disagreed about whether the ditches themselves qualified as WOTUS, and whether the wetlands on the defendant’s property shared a continuous surface connection with the ditches.

To determine whether the disputed wetland fell under CWA jurisdiction, the judge asserted that Sackett required the court to make two findings: first, that there was an adjacent body of water that qualified as a WOTUS; and second, that the wetland has a continuous surface connection with such water so that it is difficult to determine where the water ends and the wetland begins. The judge concluded that neither finding could be established.

First, the judge considered whether either the east-west ditch or the north-sound ditch qualified as WOTUS. In Sackett, the Supreme Court held that WOTUS extended only to those waters that are “relatively permanent, standing or continuously flowing bodies of water […] that are described in ordinary parlance as streams, oceans, rivers and lakes.” According to the judge, both the east-west ditch and the north-south ditch failed to meet that standard for two main reasons. First, the judge noted that the Supreme Court did not include manmade ditches in the list of waters that would be considered WOTUS. Instead, the Court included ditches in a list of examples of the types of waters that would be considered the “outer boundaries of the [CWA’s] geographical reach.” Second, the judge determined that the ditches were not relatively permanent, standing, or continuously flowing bodies of water. The evidence submitted by both parties showed that experts observed running water in the east-west ditch for five months of the year. Expert observations also showed that there were several times of the year when both ditches had no flow at all. After reviewing the evidence, the judge concluded that, at most, the ditches were “intermittent” or “ephemeral” waterways with seasonal flow that failed to meet the Sackett standard of “relatively permanent, standing or continuously flowing” bodies of water. Accordingly, the judge determined that neither the east-west ditch nor the north-south ditch were WOTUS.

The judge concluded that the first step of the Sackett analysis was enough to resolve this dispute in favor of the defendant. If neither the east-west ditch that ran just north of the defendant’s property, or the north-south ditch that ran along the western edge of the defendant’s property qualified as WOTUS, then the wetlands located on that property would not be adjacent to any waters that fell under CWA jurisdiction. However, the judge proceeded to apply step two of the Sackett analysis. According to Sackett, a wetland can only be considered a WOTUS if it has “a continuous surface connection” with a water body that itself is considered a WOTUS so that it is “difficult to determine where the water ends and the wetland begins.” Evidence showed that the wetlands located on the defendant’s property did not share a surface water connection with either the east-west or north-south ditches. The federal government argued that the Sackett decision does not require a continuous surface water connection because the Supreme Court never specifically used that term. However, the judge was not convinced and concluded that a surface water connection must be established to make it “difficult to determine where the water ends and the wetland begins.” Because there was no evidence showing that the wetlands on the defendant’s property shared a continuous surface water connection with a water recognized as WOTUS, the wetlands did not fall under CWA jurisdiction. Therefore, the judge recommended that the case be resolved in favor of the defendant.

Going Forward

As one of the first opinions to apply and interpret the ruling in Sackett, the Report and Recommendation in USA v. Sharfi is illustrative of how courts may treat the Sackett decision going forward. The judge in USA v. Sharfi broke the Sackett ruling down into two basic questions: first, is the disputed wetland adjacent to a body of water that is relatively permanent, standing or continuously flowing; second, is the disputed wetland indistinguishable from that body of water so that it is difficult to tell where the water ends and the wetland begins. If the answer to either question is negative, then the wetland does not fall under CWA jurisdiction.

The federal government has filed an objection to the Report and Recommendation with the district court, claiming that the magistrate judge wrongly concluded that the ditches were not relatively permanent waters and that there was no continuous surface connection between the ditches and the disputed wetland. The district court will review the government’s argument, along with the Report and Recommendation before issuing a final decision. Whatever the district court decides will give further clarity to how courts will resolve CWA disputes following the Sackett ruling.

To read the decision in USA v. Sharfi, click here.

To read the Supreme Court’s ruling in Sackett v. EPA, click here.

To read the text of the CWA, click here.

For more National Agricultural Law Center resources about the CWA, click here.