Major Themes from the Supreme Court’s Hearing of Sackett v EPA
Today the Supreme Court heard oral arguments on Sackett v. EPA (background here, audio recording here), which could have major consequences for federal protection of wetlands under the Clean Water Act (CWA). Major themes covered were Congress’ intent that ‘waters’ include wetlands; relative support of protecting ‘adjacent’ wetlands; and criticism of the current ‘significant nexus’ test for non-adjacent wetlands. Read on for a brief summary and notes from oral arguments from October 3rd.
Summary
On several occasions, the Justices noted that the case was important for wetlands across the country, so it was important to consider the case holistically and not just for the specific landowner’s case (i.e., Sackett - the case is called Sackett v EPA). Most Justices appeared convinced that Congress indeed intended to include wetlands in the definition of ‘waters of the US’ (WOTUS) and Justice Kavanaugh pointed out that since 1977 seven Administrations agreed with this. There also seemed to be agreement that wetlands adjacent to navigable waters were protected, but when pressed for a more specific definition of ‘adjacent,’ the EPA noted that the ‘bright line’ definition attempted by the Trump administration’s Navigable Waters Protection Rule was widely criticized and ‘reasonable proximity,’ even if not a ‘bright line,’ is not an unreasonable standard per the courts. The petitioner argued that an ‘adjacent’ wetland should be physically touching and visually indistinguishable between the wetland and traditional navigable water. The Justices did not bring up arguments or discussion supportive of this test. Justice Roberts also seemed to be concerned about the petitioners’ test in the case of a wetland that dries in summer months, which the petitioner dismissed as “one of those cases at the margin” that could be addressed through future rulemaking. Losing intermittent and ephemeral waters is a big deal, particularly if the loss extends to streams. Our recent analysis of Corps permitting data found that 1 million linear feet (the distance from DC to NYC) is permitted annually under the Clean Water Act. These streams would lose federal protections if they do not fall under the definition of WOTUS.
Multiple Justices were not satisfied with the current ‘significant nexus’ test mainly due to the inability of a normal landowner to identify this simply and inexpensively. Justice Jackson asked and EPA confirmed that a homeowner can get a jurisdictional determination (JD)* from the Corps for free, and that they have the option to argue against the decision if they want. The petitioner countered that while a JD could be free, getting a permit is a “very expensive process” - particularly due to the need to provide compensatory mitigation.
When Justice Kagen pressed the petitioner for a middle ground definition between significant nexus test and petitioner’s test, the petitioner did not provide one. Similarly, one of the Justices pressed the EPA for a definition of Waters of the United States (WOTUS) and the agency did not give one, but pointed to ongoing Rulemaking - the Administration hopes they will have a sustainable WOTUS definition issued by the end of the year. The Supreme Court is expected to issue a decision on Sackett v EPA in early 2023.
*Jurisdictional Determination or JD: an official determination of whether an area meets the current interpretation of WOTUS, and thus is protected under the CWA.
Notes from listening to oral arguments from Sackett v EPA
I listened to the full set of arguments today and I wanted to share my thorough notes here for those who want to get into the weeds!
Petitioner’s arguments
Overall: The petitioners argued for a two-part test for a wetland to meet the definition of waters of the united states (WOTUS): that the wetland should be indistinguishable from a ‘water’ (per a dictionary definition covering things like streams, rivers, and lakes), and that the wetland should be adjacent/next to a navigable water.
Congress knew about wetlands but only mentioned wetlands 'parenthetically’ (in 1344(g)) - they did not include wetlands in the definitional section, where the jurisdictional entity is ‘water.’ Congress didn’t intend for the scope of the Clean Water Act (CWA) to be as broad as it is today. Congress meant to retain some state authority over wetlands and considered private property rights in their intent.
The 1977 amendment to the CWA did not change definitional text of ‘waters,’ so it should be understood in ordinary parlance (/dictionary definition)
You can’t read the 1977 CWA amendment “and say every jot and tittle are regulated”
Petitioner acknowledged that some wetlands are covered by WOTUS, but the question was what the text intended to cover.
Adjacent in the abstract can have more than one meaning, but in this context it means physically touching.
Wetland should be indistinguishable from a ‘water’ - meaning, visually indistinguishable
If subsurface connection is considered a connection to traditionally navigable waters, it will be contested in the Courts in the future.
If on a normal yearly basis there is not a physical connection (e.g., it dries up), it would be difficult to consider this a ‘water’
The significant nexus test is problematic because a normal landowner can’t determine without expensive consultants.
The Sackett property looked like a buildable lot with no indication of wetlands connected to Priest Lake.
Sure, the Corps doesn’t charge you for a jurisdictional determination, but obtaining a permit is expensive. It’s not an easy, cheap, or fair process.
EPA arguments
Overall: EPA’s primary argument was that adjacent wetlands were not in question in this case - that it was only wetlands separated from traditionally navigable waters (e.g., due to a berm or road) that were in question. There is scientific evidence that barriers do not diminish wetlands’ ability to protect integrity of other waters, and for 45 years the EPA/Corps have regulated these wetlands. Major points: Congress in 1977 had the option to limit coverage to just wetlands adjacent to traditionally navigable waters but they didn’t & section 1344(g) has text that adjacent wetlands are covered; Court cases (SWANCC/Riverside Bayview) were an approval of Corps authority over adjacent wetlands and the Court relied on agency judgment that wetlands affect the integrity of waters; the Agencies are promulgating a WOTUS definition that will adopt a significant nexus test that will limit the scope of regulation so wetlands are only covered if they reach a traditionally navigable water.
EPA noted that in 2015 the Trump administration tried a ‘bright line’ definition of adjacency (e.g., a certain distance in feet from a traditionally navigable water) that was widely criticized. Reasonable proximity, even if not ‘bright line’ is not an unreasonable standard.
Agencies say water is WOTUS if it is either adjacent to a traditional navigable water, or if it has a significant nexus.
Coverage of wetlands is not unaligned with Congress’ intent or federalism as this has been argued and addressed in previous court cases. The EPA considers the significant nexus test to be the way coverage of waters is limited.
Agencies say the Sackett property is adjacent to a tributary (~30ft) and then there is significant nexus from the tributary to a lake.
Justice’s comments / arguments
Note: I only heard the audio and may have excluded or incorrectly attributed the Justice(s). If/when a transcript is available, this will be updated.
Congress’ intent of the CWA was to protect the physical, chemical, and biological integrity of the nation’s waters. Congress’ objective was not to preserve state authority. (Jackson and Sotomayor)
The term ‘adjacent’ in the 1977 CWA amendment included wetlands removed by berms, dunes, dikes, etc. This was in 1977 and in every Administration since then. (Kavanaugh)
Justice Sotomayor asked the EPA for a different test of adjacency that could be more precise, and EPA responded that a bright line had not worked as an answer but that the agency was taking comment during rulemaking.
Justices Kagen pressed the petitioner for a middle ground definition between significant nexus test and petitioner’s test, but the petitioner did not provide one. One of the Justices pressed the EPA for a definition of WOTUS and the agency did not give one noting it would be difficult to provide one that could be applied everywhere.
There was brief discussion about ephemeral wetlands, with Justice Roberts asking whether a water would be WOTUS if it dried up in summer months. The petitioner argued that it would be hard to call it a water if, on a normal basis, there is not a physical connection and stated that this would be “one of the cases at the margin” that could be addressed through further agency rulemaking.
Justice Jackson noted that if ‘visually indistinguishable’ was the test, future cases would be arguing about this. The petitioner rebutted that there would be far less cases than under the ‘significant nexus’ test.
A Justice questioned the EPA about how much biological connection was enough to establish significant nexus, but did not get a specific answer.
Justice Barrett seemed interested in whether there would be certain wetlands that would fall into limbo where neither states nor the CWA would or could regulate, were the Court to adopt something broader than the petitioner’s definition of ‘adjacent.’
Justices Thomas and Barrett were concerned that a normal homeowner could not know whether their property was a wetland. Justice Gorsuch noted “If the federal government doesn’t know, how does a landowner?” Justice Jackson asked and EPA confirmed that a homeowner can get a jurisdictional determination from the Corps for free, and that they have the option to argue against the decision if they want. Justice Kavanaugh was concerned whether an innocent mistake about whether a property was WOTUS could be punished criminally, and EPA responded that it was rare for the agency to assign criminal liability for simple negligence.
Justice Alito seemed dubious of the EPA’s evidence of significant nexus from the property’s connection to a roadside ditch, to a creek, to the navigable Priest Lake. Justice Sotomayor brought up the EPA’s evidence of a direct connection via a subsurface flow of water. Justices Jackson and Sotomayor noted that in this particular case, there was evidence that the property owner could have known it was a wetland - there was standing water, there was a previous jurisdictional determination on the property (which was not provided to the Sacketts), the Sackett’s consultant noted it could be wetlands (per EPA), and the property only looked dry after the topsoil was taken out and gravel filled in (Sotomayor).
Justices Thomas and Gorsuch asked about intrastate waters and whether these fell under federal jurisdiction, but the question seemed to be answered by a recent case in the Great Salt Lake in Utah, where it was decided that an intrastate water could sustain interstate commerce.
We will keep up with developments. Rulemaking on a WOTUS definition by the Biden Administration should be coming up next.
Want to know more about WOTUS in SCOTUS? Read background here, and perspectives from the restoration economy community.
