- A federal judge will not grant an injunction for the North Carolina property owner suing federal agencies over their regulation of wetlands.
- Robert White's lawyers argue that the Environmental Protection Agency and Army Corps of Engineers failed to follow the US Supreme Court's guidance in a 2023 case known as Sackett.
- US District Judge Terrence Boyle ruled this week that White is unlikely to succeed on the merits of his argument.
A federal judge has decided not to grant an injunction against the US Environmental Protection and Army Corps of Engineers in a lawsuit challenging the agencies’ definition of federally protected wetlands. Property owner Robert White is challenging federal regulation of his forested land near the Pasquotank River.
“This case is about ‘adjacent’ wetlands and their place within the ‘waters of the United States’ as those terms are understood in the Clean Water Act,” wrote US District Judge Terrence Boyle in an order filed Tuesday. “Last year in Sackett v. EPA, the Supreme Court narrowed the scope of wetlands considered ‘adjacent’ to ‘waters of the United States’ and thus federally regulable under the CWA. The pre-Sackett administrative edifice, built on a more relaxed understanding, shifted to conform.”
EPA and the Army Corps issued a final rule in September 2023 revising definitions to comply with the Sackett ruling, Boyle noted. “Plaintiff Robert White claims that the Corps and the EPA (the Agencies) did not faithfully implement Sackett’s test for adjacent wetlands because their definition omits a key element,” the judge wrote. “He sued the Corps and the EPA under the Administrative Procedure Act, to set aside the allegedly unlawful Amended Rule.”
“He now moves to preliminarily enjoin the Corps and the EPA from enforcing the Amended Rule against him and his properties. Because White is unlikely to succeed on the merits, the Court denies his motion for preliminary injunction,” Boyle wrote.
The judge described White as “a relative latecomer to an issue that has frustrated federal courts since the early years of the CW A: Which wetlands are adjacent to, and thus considered part of, the ‘waters of the United States’?”
Boyle’s order also characterized White’s suit as a response to EPA’s ongoing civil enforcement actions against him. Federal regulators claim “White discharged pollutants into jurisdictional waters without a permit when he constructed and filled linear bulkheads in open water and wetlands, both marsh and forested, at sites abutting the Pasquotank River and Big Flatty Creek,” the judge wrote.
“White shifted from defense to offense” with the filing of his lawsuit against the federal agencies, Boyle wrote. White’s suit challenges the post-Sackett definitions governing wetlands.
“He reads Sackett to hold that a continuous surface connection is necessary but not sufficient for a wetland to be practically indistinguishable and thus ‘adjacent’ to a jurisdictional water,” Boyle wrote. “To White, a continuous surface connection is merely the first of two requirements for indistinguishability from a ‘water[] of the United States.’ Thus, to be ‘adjacent.’ a wetland must not only have (1) a continuous surface connection to a water of the United States but also be (2) practically indistinguishable from the water of the United States, such that it is difficult to determine where the water ends and the wetland begins.”
“The Court cannot square White’ s view of what Sackett requires of a wetland to be ‘adjacent’ with what Sackett actually requires,” the court order continued.
“[A] wetland with a continuous surface connection is a ‘water[] of the United States’ because that continuous surface connection renders the wetland practically indistinguishable from the jurisdictional water to which it is connected,” Boyle explained.
“No lower court has read Sackett to mandate a wetland have both a continuous surface connection to a jurisdictional water and practically indistinguishable in order to be ‘adjacent,’” he added.
“To summarize, White’s challenge to the Amended Rule smacks up against the Rule’s fidelity to ‘waters of the United States’ and Sackett’ s test to determine when an adjacent wetland meets that definition,” Boyle concluded. “White falters by isolating a phrase in Sackett from its logical connection to the remainder of the opinion.”
“The thing that makes a wetland practically indistinguishable from an adjacent ‘water[] of the United States’ is the presence of a continuous surface connection,” he wrote. “Thus, the Amended Rule faithfully conforms to the definition of ‘waters of the United States’ as interpreted by Sackett.”
White is working with the Pacific Legal Foundation, which argued the Sackett case at the US Supreme Court. The case has a “strong national precedent-setting opportunity,” PLF’s Damien Schiff told Bloomberg Law in May.