By Jay Landers
In 2006, the U.S. Supreme Court sought to clarify which types of water bodies are subject to federal jurisdiction under the Clean Water Act. However, the resulting decision, handed down in the case known as Rapanos v. United States, caused more confusion than clarification. Since then, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have issued multiple rules attempting to incorporate the Rapanos ruling. But these rules vary widely in scope, depending on the presidential administration under which they were issued.
In early October, the Supreme Court held a hearing in another case that aims to resolve some of the thorny questions that continue to complicate efforts to ascertain what constitutes “waters of the United States,” the phrase that Congress used to mean those waters subject to the CWA. Because the composition of the court has shifted to the right of the political spectrum in recent years, some observers anticipate that the court’s eventual ruling in the case will significantly reduce the scope of federal jurisdiction over certain types of water bodies. Such a result would leave protection of such waters in the hands of the states, an outcome that some see as likely to lead to an increase in water pollution in the affected waters and any other waterways into which they drain.
Sackett v. EPA
On Oct. 3, the Supreme Court heard the case of Sackett v. Environmental Protection Agency et al. Michael and Chantell Sackett, the petitioners in the case, own a vacant lot in a residential subdivision near Idaho’s Priest Lake. In 2007, after obtaining the necessary local permits, the Sacketts began constructing a home on the lot, which has no surface water connection to any body of water. That same year, the EPA ordered the Sacketts to stop construction after determining that the lot contains wetlands that are subject to the CWA. As a result of this determination, the Sacketts were ordered to restore the wetlands and told to obtain a federal CWA permit before they could build on the property.
The EPA based its determination on its finding that the Sacketts’ lot qualifies as “navigable waters,” the term that Congress used in 1972 when it created a permitting program to regulate discharges of pollutants to bodies of water. The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” Over time, the EPA and the Corps have expanded the definition of waters of the United States to include waters that are not navigable in the traditional sense. Subsequent Supreme Court decisions have upheld and, at other times, limited the agencies’ definitions of what constitutes a navigable water.
For example, in 1985, the Supreme Court sided with the agencies, finding that wetlands adjacent to traditional navigable waters and their tributaries are under the jurisdiction of the CWA. In 2001, the court differed with the agencies, finding that “isolated waters” — meaning intrastate waters that are not navigable in the traditional sense and are neither tributaries nor adjacent to navigable waters — could not be subject to the CWA solely on the presence of migratory birds. Then came the Rapanos decision in 2006.
The decision addressed the question of whether the federal government may regulate wetlands abutting nonnavigable tributaries to navigable waters. Unfortunately, the justices were unable to devise a straightforward answer to this question.
In a plurality opinion, Justice Antonin Scalia found that federal jurisdiction over nonnavigable waterways is limited to “relatively permanent, standing, or flowing bodies of water” and that wetlands, if they are to be subject to regulation under the CWA, must have a “continuous surface connection” to other waters covered by the law. However, a separate, concurring opinion by Justice Anthony Kennedy concluded that wetlands are waters of the United States if they have a “significant nexus” to traditional navigable waters, meaning that they significantly affect the chemical, physical, or biological integrity of waters subject to federal jurisdiction.
After much legal wrangling between the Sacketts and the EPA, the parties went before the U.S. District Court for the District of Idaho to determine whether the couple’s property contained wetlands comprising navigable waters and were thus subject to the CWA. Relying on Scalia’s opinion in the Rapanos case, the Sacketts maintained that their lot lacked a continuous surface connection to other regulated waters and therefore was not subject to the CWA, according to a summary on the website of the Pacific Legal Foundation, the entity representing the Sacketts during their legal proceedings.
In March 2019, the district court ruled against the Sacketts, finding that the EPA was correct in asserting jurisdiction over their property using Kennedy’s significant nexus test. The Sacketts appealed the case to the U.S. Court of Appeals for the 9th Circuit, which in August 2021 affirmed the decision of the lower court. The couple then appealed to the Supreme Court, which agreed to hear the case. However, the Supreme Court limited it to the question of “whether the 9th Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the” CWA, according to a summary of the case from the court.
In their brief on the merits submitted to the Supreme Court, the Sacketts argued that the significant nexus test should be abandoned in favor of a “two-step framework” for determining when a wetland is among the waters of the United States and thus subject to the CWA.
The framework’s first step involves determining if a wetland is “inseparably bound up with a ‘water’ — i.e., a stream, ocean, river, lake, or similar hydrogeographic feature that in ordinary parlance would be called a ‘water’ — by means of a continuous surface-water connection, such that it is difficult to tell where the wetland ends and the ‘water’ begins,” according to the brief. The second step entails confirming that the “water” in question is indeed “among ‘the waters of the United States,’ i.e., those waterbodies subject to Congress’s authority over the channels of interstate commerce.”
The two-step framework is “vastly superior to the significant nexus test employed by the 9th Circuit,” according to the brief. “Unlike the two-step framework, the significant nexus test conflicts with the statutory text and the court’s precedents, while raising troubling federalism concerns and threatening the right of landowners to fair notice of what the law demands.”
In its response brief to the Supreme Court, the EPA noted that the Sacketts’ property was part of a larger fen complex that “drained directly into Priest Lake.” Although a road now separates the property from what remains of the fen, the Sacketts’ lot “remains connected to the fen and the lake by ‘shallow subsurface flow,’” according to the brief.
Further, when EPA staff visited the site before ordering a halt to construction, the team “observed soils, vegetation, and pooling water characteristic of wetlands,” the brief noted. The subsequent order “was based in part on the agency’s finding that the wetlands on petitioners’ property improve Priest Lake’s water quality through sediment retention, contribute base flow to the lake with beneficial effects to fisheries, and provide flood control.”
Along with affirming that a significant nexus exists between wetlands on the lot and the nearby lake, the EPA maintained that congressional amendments to the CWA in 1977 reaffirmed the act’s coverage of “adjacent” wetlands. The agency also attacked the concept of the two-step framework for determining jurisdiction that was proposed by the Sacketts. Using a continuous-surface-connection test as the exclusive criterion for CWA coverage would “lead to arbitrary and illogical results,” according to the agency’s brief.
For example, the test would “exclude jurisdiction and allow filling of wetlands that are adjacent to a river but separated from it by a levee,” the brief stated. “More broadly, a continuous-surface-connection requirement could make loss of CWA jurisdiction a consequence of building a road, levee, or other barrier — even if the construction had little or no effect on the interdependent relationship between a wetland and a neighboring water. That could create perverse incentives to build or modify such barriers in a manner aimed either at destroying or preserving federal jurisdiction.”
Ultimately, such an approach “would seriously compromise the act’s comprehensive scheme by denying protection to many adjacent wetlands — and thus the covered waters with which those wetlands are inextricably linked,” the EPA maintained. “If petitioners prevail in this case, they will be able to discharge fill material into the wetlands at issue without any permitting requirement. And the same scene will play out across the country, severely weakening the act’s protections for adjacent wetlands and, in turn, the traditional navigable waters that the CWA’s permitting regime is ultimately intended to protect. That result would thwart Congress’s comprehensive pollution-control regime.”
This dire assessment was seconded by several groups responsible for various water management actions. In an amicus curiae brief submitted to the Supreme Court in support of the EPA’s position, the National Association of Wetland Managers, the Association of State Floodplain Managers, the American Planning Association, the American Water Works Association, and the New England Interstate Water Pollution Control Commission stated: “The narrow interpretation of (waters of the United States) advanced by petitioners would leave waters that have no continuous surface water connection to permanent waters, as well as waters that are not navigable in fact, outside federal regulation. Because these waters are important for protection of drinking water quality, flood prevention, and sensible community planning, the impact would be severe.”
The meaning of ‘adjacent’
During the Oct. 3 hearing before the Supreme Court, much attention was paid to the meaning of the word “adjacent,” the term that Congress included in its 1977 CWA amendments to specify the types of wetlands that would remain subject to federal jurisdiction even in cases where states opted to establish their own programs for regulating discharges into navigable waters.
Damien Schiff, an attorney from the Pacific Legal Foundation representing the Sacketts, maintained that “adjacent” in the context of jurisdictional wetlands refers strictly to wetlands having a physical connection to a navigable water. Under this interpretation, the Sacketts’ lot would not be considered a jurisdictional wetland.
However, Justice Elena Kagan contested Schiff’s assertion, noting that dictionary definitions of the term indicate “two things can be adjacent to each other without touching each other,” according to the Supreme Court’s transcript of the hearing.
Pursuing this same point, Justice Ketanji Brown Jackson asked Schiff, “Why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical, and biological integrity of the nation's waters? So are you saying that neighboring wetlands can't impact the quality of navigable waters?”
“Not at all,” Schiff said. “However, it's also important to acknowledge that Congress was balancing concerns here. On the one hand, there is a water quality issue. But, on the other hand, there's a very important federalism issue, so important that actually Congress put in the text of the act that one of the purposes of the act is to preserve traditional state authority over land and water resources.”
In contrast, Brian Fletcher, the principal deputy U.S. solicitor general representing the EPA and the Corps, told the court: “This case is about the regulations dealing with adjacent wetlands, and as to those wetlands, the agencies think they're covered if they're adjacent to traditional navigable waters or if they're adjacent to upstream tributaries and they satisfy the significant nexus test.”
Attempting to get Fletcher to state precisely what constitutes an “adjacent” wetland, Justice Neil Gorsuch asked Fletcher whether wetlands located various distances from a navigable water would be subject to CWA jurisdiction. Fletcher noted that the EPA and the Corps “do not draw bright-line rules” in such cases.
In response, Gorsuch asked: “So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?” For his part, Fletcher noted that the Corps would provide landowners with a free jurisdictional determination.
Although a decision in the case is not expected until June, when the Supreme Court traditionally hands down its decisions, some observers expect that the court will rule in favor of the Sacketts.
With a majority of the court’s justices “skeptical of federal expansion,” the court is “more likely than not” going to find for the Sacketts, says Rafe Petersen, a partner at the law firm Holland & Knight LLP and whose practice includes obtaining jurisdictional determinations and various types of permits under the CWA.
“This court is overwhelmingly likely to decide with the Sacketts,” says Howard Nelson, a partner and the head of environmental practice at the law firm Bilzin Sumberg Baena Price & Axelrod LLP. “If any Supreme Court in the history of the United States is poised to remove” CWA protections for the wetlands at issue in the Sackett case, “this would be the Supreme Court to do it.”