The Supreme Court of the United States declined to hear an appeal from Connecticut landowner Jeffrey Andrews, who was found by lower courts to have violated the Clean Water Act by filling wetlands without a permit. In doing so, the court chose not to weigh in further on ongoing debates over the definition of “waters of the United States” (WOTUS) following its decision in Sackett v. EPA.
The case stems from Environmental Protection Agency (EPA) enforcement actions involving approximately 72 acres of property in Wallingford and North Branford, CT. Federal regulators determined Andrews filled roughly 13.3 acres of wetlands connected to an unnamed tributary of the Farm River without obtaining a permit required under the Clean Water Act. The U.S. Army Corps of Engineers first informed Andrews in 2011 that a permit would be necessary before conducting fill activities in the wetlands.
After years of back-and-forth between Andrews and federal regulators, the EPA filed suit in 2020, claiming he had placed fill material in protected wetlands without authorization. A federal judge agreed with the agency in 2023, finding that the wetlands fell under Clean Water Act jurisdiction and ordering restoration of the site along with civil penalties. The ruling was later affirmed by the 2nd Circuit Court of Appeals.
The case attracted national attention because it centered on how courts should apply the Supreme Court’s ruling in Sackett v. EPA. In that decision, the court narrowed federal authority over wetlands, holding that only wetlands with a “continuous surface connection” to traditional navigable waters fall under federal jurisdiction. Lawyers for Andrews argued the lower courts misapplied Sackett by focusing on evidence of surface flow paths rather than determining whether the wetlands were “as a practical matter indistinguishable” from adjacent waters.
According to the National Agricultural Law Center, Andrews’ lawyers argued that the lower courts focused too heavily on evidence of continuous surface flow paths between the wetlands and a jurisdictional waterway rather than determining whether the wetlands were truly indistinguishable from the adjacent water body.
The EPA urged the Supreme Court not to take the case, arguing Andrews had not raised the “indistinguishability” argument in the lower courts and that federal agencies are already engaged in an ongoing rulemaking process to revise the WOTUS definition to conform with Sackett.
The dispute also drew support from a coalition of states. West Virginia Attorney General J.B. McCuskey and Nebraska Attorney General Mike Hilgers co-led an amicus brief signed by attorneys general from 23 states.
Their brief argued that federal courts continue to ignore the Supreme Court’s guidance in Sackett and that states, rather than the federal government, should retain primary authority over water regulation within their borders. The coalition contended Andrews should not face nearly $2 million in potential penalties for wetlands that may have only temporary surface-water connections and argued the case represents another example of federal overreach into areas traditionally regulated by states. The brief also noted that at least 30 states maintain their own wetland protection programs and urged the Supreme Court to clarify the limits of federal authority under the Clean Water Act.
The Supreme Court’s decision not to take up the case leaves the 2nd Circuit Court of Appeals’ ruling in place and provides no additional direction on how courts should interpret the term “indistinguishable” under Sackett. As a result, the lower court’s reasoning remains intact. — Charles Wallace, WLJ contributing editor
