A federal court refused June 18 to issue a preliminary injunction to block EPA action in a North Carolina coastal landowner’s lawsuit against the federal environmental agency.
The case, White v. EPA, is one of several from North Carolina that are working their way through the federal courts, potentially testing how the landmark 2023 decision on wetlands by the U.S. Supreme Court in Sackett v. EPA is interpreted and applied going forward.
At stake is a narrowing definition of which wetlands qualify as waters of the United States, making them subject to federal regulatory action.
The U.S. District Court for the Eastern District of North Carolina issued its decision denying plaintiff Robert White‘s motion for preliminary injunction, which would have prevented the EPA from ongoing regulatory action while the case is in the courts.
White sued the EPA and Army Corps of Engineers, alleging a revised rule protecting waterways that feed into rivers and lakes is too broad and has caused economic harm by forcing White to limit his property’s use and expend resources.
White is also being sued by the U.S. Justice Department, on behalf of the EPA, claiming he filled in navigable waters without a federal permit.
A preliminary injunction is an order issued by a judge early in a lawsuit to stop the defendant from continuing allegedly harmful actions, thus preserving the status quo before the final judgment.
Federal Judge Terrence Boyle’s decision said White “failed to show that he is likely to succeed on the merits of either of his claims” and therefore does not meet the threshold for granting an injunction.
“As a result of the (injunction) decision, nothing changes with respect to the relationship between the agencies and White’s properties,” said Southern Environmental Law Center attorney Mark Sabath.
“We’re pleased with the decision. It’s consistent with what we argued, which is that the rule that the agencies came out with is lawful and is consistent with what the Supreme Court said in Sackett.”
The decision to deny the injunction does not impact the federal court’s eventual decision in the case. Sabath is uncertain when the case will be scheduled.
U.S. Clean Water Act
Defined by the U.S. Clean Water Act, or CWA, the term “waters of the United States” refers to bodies of water used for interstate or foreign commerce, plus other waters such as lakes, rivers and streams whose degradation or destruction could affect interstate or foreign commerce.
Following the Sackett v. EPA decision, some future land uses, such as construction projects that include wetlands, however, will no longer be subject to federal oversight. The Southern Environmental Law Center estimates that includes roughly 1 million acres of wetlands in North Carolina.
After purchasing property in 2004 near Priest Lake, Idaho, Michael and Chantell Sackett backfilled land with dirt to prepare for construction. The EPA intervened, claiming the property contained wetlands and violated the CWA.
The EPA ordered the Sacketts to restore the site or face penalties of more than $40,000 per day. Disputing the EPA’s classification of their property as “waters of the United States,” the Sacketts sued.
In May 2023 the Supreme Court decided 5-4 in favor of the Sacketts, saying the CWA does not extend to the wetlands on their property. To be considered waters of the U.S, according to the decision, a wetland must have a continuous surface connection to a relatively permanent body of water connected to traditional interstate navigable waters.
According to the NC Department of Environmental Quality, or DEQ, many wetlands occur far from open water in low-lying areas where rainwater collects or on land where the groundwater is often at or near the soil surface. Some areas contain water all year, others may appear dry during periods of low rainfall.
The CWA is enforced and regulated by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.
White v. EPA
According to White’s lawsuit, he invested in improvement of his coastal properties to support his commercial ventures. According to White, the properties require ongoing maintenance and erosion control since they are prone to flooding in low-lying areas near Big Flatty Creek and the Pasquotank River that feed into the Albemarle Sound in Pasquotank, Camden and Currituck counties in northeastern North Carolina.
On January 6, 2023, the United States sued White, alleging that his properties contain wetlands classified as navigable waters and fall within EPA and Army Corps jurisdiction. According to the government, White discharged pollutants into jurisdictional waters without a permit when he built and filled linear bulkheads in open water and wetlands at sites abutting the Pasquotank River and Big Flatty Creek.
White subsequently filed a suit against the federal agencies.
However, he claims the EPA’s revised wetland rule doesn’t comply with the Sackett decision since, he says, the wetlands are not continuously connected via surface water during low tide or dry periods and should not be regulated under the CWA.
According to the Pacific Legal Foundation, or PLF, which represents White, he is seeking to restore his right to make use of his own land.
“Faced with significant economic costs due to the Amended Rule, White must choose between halting his operations, undergoing costly and time-consuming investigations and permitting processes, or risking severe penalties,” according to the PLF’s website.
“This situation forces White to limit his property’s use and expend resources to comply with the agencies’ broad interpretation of their wetlands authority.”
The PLF is arguing that the Sackett decision is a rejection of the EPA’s and Army Corps’ historical approach to regulating private land. However, the amended rule’s “adjacent wetlands” provisions do not conform with Sackett’s interpretation of the CWA.
“We are disappointed with the court’s ruling,” said PLF attorney Paige Gilliard in a June 20 email to CPP.
“The Supreme Court was clear in Sackett that federal jurisdiction over wetlands requires both a continuous surface connection and indistinguishability from jurisdictional waters. The CWA regulates navigable waters, not land, so indistinguishability is a critical part of the Sackett test. The Amended Rule’s lip service to continuous surface connection is not enough under Sackett.”
Defending wetlands
In May the Southern Environmental Law Center, or SELC, representing the National Wildlife Federation and the North Carolina Wildlife Federation filed a motion to intervene in White v. EPA.
Intervening is entry into a lawsuit by a third party into an existing civil case who was not named as an original party but has a personal stake in the outcome.
The SELC seeks to prevent narrowing the definition of “adjacent wetlands” which could allow for the unregulated use of critical wetlands, bypassing traditional permitting requirements which were narrowed by Sackett.
According to an SELC press release, in addition to being vital for fisheries and water quality, wetlands help protect many communities facing more frequent and intense flooding because of climate change.
“What the plaintiff in this case is seeking could make it more difficult to protect wetlands and other waters that are critical to fish, waterfowl, shellfish, and other wildlife, and allow widespread destruction and degradation of those critically important waters along with pollution and flooding downstream,” said Jim Murphy, senior director of legal advocacy for the National Wildlife Federation.
“Strong Clean Water Act protections safeguard critical wetlands and other waters that sustain our nation’s wildlife and people.”
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