The U.S. Supreme Court has decided an important case, Sackett v. Environmental Protection Agency, with major implications for golf course management.
The case revolves around wetlands located on the Sacketts’ property in Idaho, which they had begun backfilling to build a home. The EPA determined that because the wetlands were a water of the United States (WOTUS), backfilling them violated the
Clean Water Act. Of significance to golf was how the EPA came to that determination: The EPA used the “significant nexus” test to find a connection between the wetlands and a navigable, intrastate lake that was many miles away. The significant
nexus test is highly problematic for golf course superintendents and others trying to determine whether the waters on, over or near their properties are under federal jurisdiction. We have seen it in various rule-making over the years, including in
the final “Revised Definition of Waters of the United States” rule that took effect on March 20, 2023 (which GCSAA has opposed).
In Sackett, the Supreme Court has ended the use of the significant nexus test and in doing so, limited federal jurisdiction over wetlands as well as other water features important to golf course management.
A clear definition
For wetlands to be considered a WOTUS, the court in Sackett held they must (1) be adjacent to a “relatively permanent body of water connected to traditional interstate navigable waters” and, (2) have a “continuous surface connection
with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
This, to put it plainly, is a big deal. The court limits adjacency so that a wetland has to be visibly connected to a relatively permanent body of water to be considered a WOTUS — so connected, in fact, that it is “indistinguishable”
with that water. Adjacent cannot mean “near” or “neighboring.” So, no more concerns about the distance between the wetland and a WOTUS.
Further, there is no longer a need to determine if a subsurface connection exists. The use of the significant nexus test to determine a wetland has ended.
The Supreme Court did not just eliminate the significant nexus test for wetlands in the Sackett decision. It also eliminated the test for determining federal jurisdiction over all waters. It held that the waters referred to in the first point above encompass
“only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Again, this is a big deal.
One of the concerns golf has raised with federal regulators is what to do with ephemeral water features (i.e., land that is temporarily wet). That concern has been removed.
The EPA notes on its website that it will interpret WOTUS “consistent with the Sackett decision.”
And there are legal challenges to the rule in 26 states that are still pending.
Finally, there are still details to be determined regarding connectivity and relatively permanent waters. None of that will happen immediately. But the Sackett decision remains the limit on how far federal jurisdiction extends over waterways.
Bob Helland is GCSAA’s director of congressional and federal affairs. GCSAA’s government affairs department can be reached at 800-472-7878, ext. 3619.