Wetland Protections Shift: Impact on Michigan CRE

In May 2023, the Supreme Court ruled on the case of Sackett v. Environmental Protection Agency, marking a significant turning point in the definition and protection of wetlands. The case originated in a dispute over wetlands on the Sacketts’ property. The Sacketts had purchased a vacant lot near Priest Lake in Idaho with plans for construction. However, soon after starting construction they were notified by the EPA to stop construction due to the area’s classification as wetlands under the existing definition at that time. After a series of legal proceedings, the case reached the Supreme Court, where a 5-4 decision favored the Sacketts.

In its 5-4 decision, the Court held that to be considered waters of the United States, wetlands and other water features must be indistinguishable from traditional navigable waters and must also have a continuous surface connection to those water features. The Court applied a new two-part test to determine jurisdiction over adjacent wetlands: (1) the adjacent body of water must independently constitute a “water of the United States,” and (2) the wetland must have a continuous surface connection with the adjacent body, making it difficult to determine where the adjacent “water” ends, and the wetland begins. The majority acknowledged a single exception in their decision, recognizing that the requisite surface connection may be temporarily interrupted due to natural phenomena such as tides or dry spells. The agencies are interpreting “waters of the United States” to mean the waters defined by the familiar pre–2015 regulations, with amendments to reflect the agencies’ determination of the statutory limits on the scope of WOTUS informed by Supreme Court precedent.

Since the ruling the EPA and US Army have updated their rules to follow this new standard, and with the change in rules wetlands face less protection than ever. An EPA spokesperson had this to say to CNN reporters, “It could impact up to 63% of US wetlands by acreage and around 1.2 million to 4.9 million miles of ephemeral streams.”

Overall, the supreme court ruling largely cuts down on the protection of wetlands and changes the test to what many outlets call an “eyeball test”. Each state still has their own rules and regulations on wetlands, but federal protections have been lessened. Most environmental News outlets are criticizing the ruling saying it opens wetlands for development.

What effect will this have on Michigan?

In short, ruling will affect Michigan very little, but there is reason for this. Michigan is one of the three states that has the authority to enact its own wetland program under state law, this being Michigan’s department of Environment, Great Lakes, and Energy, otherwise known as EGLE. 

In addition to the state’s delegated authority under the Clean Water Act, Part 303 of Michigan’s Natural Resources and Environmental Protection Act (NREPA) regulates wetlands not covered by federal law, including any that are within 1,000 feet of the Great Lakes and Lake St. Clair, within 500 feet of an inland waterway, or larger than five acres in size. Michigan law also allows local governments to enact ordinances to protect wetlands less than 5 acres in size. Along with requiring those who disturb federally protected wetlands to obtain a permit and take steps to avoid harm. 

All this being said, Michigan still had wetlands that will be affected by the new ruling. And going forward this change in definitions is bound to open up new opportunities in Michigan that were once seen as unavailable. 

Final Thoughts

Overall, the ruling cuts down largely on the current protection of wetlands, the new test that they put in place is very lenient and will open plenty of space for future development. How long this current wording of the rules will last is an unknown though, many outlets expect the wording of the ruling to be revised and the wetland protections to be re invigorated. But for now, there is going to be plenty of land left exposed by the current ruling.

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