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On December 18, 2023, the U.S. Court of Appeals for the Fifth Circuit applied the U.S. Supreme Court’s Sackett v. EPA decision redefining waters of the United States (“WOTUS”) to end a ten-year conflict between the U.S. Army Corp of Engineers (“USACE”) and a Louisiana landowner over the agency’s Clean Water Act (“CWA”) jurisdiction over the subject property. In Lewis v. United States, Case No. 21-30163, the Fifth Circuit applied a plain reading of the Sackett test without deferring to the agency’s interpretation, finding the facts demonstrated “simply no connection whatsoever” between alleged wetlands and a relatively permanent body of water connected to interstate navigable waters. The court additionally refused to remand the matter back to USACE, under the rationale that the facts indicated no other possible conclusion, and provided finality to the landowner by directing the district court to enter judgment that the property in question does not contain WOTUS.

As detailed in our prior Sackett blog article, CWA jurisdictional decisions have been plagued by administrative rulings, guidance, and court opinions that attempted to implement the plurality opinion in the Supreme Court’s 2006 Rapanos v. United States decision, under which the “significant nexus” test allowed for a broader interpretation of WOTUS. In this case, the parties’ ten-year conflict centered on USACE’s attempts to assert CWA jurisdiction over “wetlands” on the subject property throughout the shifting regulatory landscape that attempted to apply that test. According to the Fifth Circuit, however, the Sackett decision “cleared the air” by significantly tightening the definition of regulated wetlands.

Sackett requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] . . . water[s] of the United States, (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” In the case before the Fifth Circuit, the plaintiff, Garry Lewis, owned substantial property in Livingston Parish, Louisiana, including two approximately twenty-acre tracts of “grass-covered, majority dry fields, with gravel logging and timber roads on two sides of each tract.” USACE’s determination that this property contained “wetlands” subject to CWA jurisdiction derived from connecting “(a) roadside ditches and (b) a culvert to (c) an unnamed non-‘relatively permanent water’ tributary, then to (d) Colyell Creek (a ‘relatively permanent water’) several miles away, and ultimately to (e) the traditionally navigable waterway of Colyell Bay ten to fifteen miles from the Lewis property.”

In relying on the Sackett test, the Fifth Circuit noted that USACE had already conceded that the adjacency test could not be met based on undisputed facts in the record. The Fifth Circuit further explained that photographs of the property showed there was no “continuous surface connection” between any wetlands on the property and a “relatively permanent body of water connected to traditional interstate navigable waters,” because the nearest relatively permanent body of water was removed miles away from the property by roadside ditches, a culvert, and a non-relatively permanent tributary.

Accordingly, the Fifth Circuit reasoned that it was not difficult to determine where the “water” ended and any “wetlands” on the property began, because there was simply no connection at all. The Fifth Circuit ultimately held that there was no basis for assertion of CWA jurisdiction over the property, so it remanded the case with instructions to enter judgment in favor of the landowner finding that the property at issue was not WOTUS under Sackett.

The Fifth Circuit did not defer to the EPA and USACE’s amended WOTUS rule, instead relying entirely on the Sackett decision. The amended EPA/USACE rule is effective only in states where a previous January 2023 rule had not been enjoined. That rule has been enjoined in Louisiana and thus the most recent amended rule could not be applied to this case. Until that litigation is resolved, we can expect to see the Fifth Circuit continue to apply Sackett directly. Two judges on this Fifth Circuit panel, Edith H. Jones and Stuart Kyle Duncan, also came out strong against USACE’s regulatory reach, admonishing the agency in a footnote stating that further attempts to assert regulatory jurisdiction over the plaintiff’s property could subject the agency to sanctions under the Equal Access to Justice Act’s bad faith provision.

Contact Liskow attorneys Clare Bienvenu, Emily von Qualen, Colin North, and Greg Johnson for more information regarding this topic.

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Photo of Clare M. Bienvenu Clare M. Bienvenu

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental…

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental laws. Clare additionally facilitates the permitting and regulatory aspects of developing new facilities on behalf of energy, petrochemical, and industrial clients. Her substantive environmental experience includes air permitting, hazardous waste regulation, land remediation, land use regulation, coastal regulation, carbon sequestration projects, and renewable energy projects.

Clare has played a key role in various administrative matters, proceedings, and enforcement actions. She has participated in consent decree negotiations and the termination of consent decrees with the Environmental Protection Agency and the Department of Justice, as well as settlement negotiations with the Louisiana Department of Environmental Quality and the California Air Resources Board. Clare has also represented clients in permitting matters involving the U.S. Army Corps of Engineers and the Louisiana Department of Natural Resources, Office of Coastal Management. She also advises on environmental justice considerations in the context of agency permitting.

Photo of Emily von Qualen Emily von Qualen

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in…

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in the Western District of Louisiana with Judge Minaldi.

Emily received her Juris Doctor from Tulane University Law School in 2016, graduating first in her class.  During law school, she also served as a judicial extern to the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James Brady of the United States District Court, Middle District of Louisiana.

Photo of Colin North Colin North

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he…

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he was a member of the Board of Advocates and participated in the Robert Lee Tullis Moot Court Competition.

Photo of Greg L. Johnson Greg L. Johnson

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic…

Greg Johnson is an experienced business lawyer with a long record of helping Louisiana companies with the environmental aspects of complex, large-impact transactions, litigation, and regulatory compliance issues throughout the surrounding Gulf Coast region.  A significant focus of Greg’s practice is representing domestic and international corporations with environmental permitting for major, high-profile industrial facility projects – such as a proposed, $20 billion gas-to-liquid facility – and with the resolution of often-controversial, high-exposure, oil and gas or energy-related disputes, such as claims in the aftermath of the Deepwater Horizon oil spill.