Photo of Clare M. BienvenuPhoto of Emily von QualenPhoto of Colin NorthPhoto of Greg L. Johnson
Listen to this post

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.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney-client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.