The Clean Water Act’s Not So Clean Application in Close Cases

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Just last week, on October 3, 2022, Sackett v. EPA found itself once again before the U.S. Supreme Court for oral arguments, its first appearance at SCOTUS having been a decade before. In January 2022, when the Supreme Court agreed to hear Sackett for a second time following remand, the petitioner Sacketts had amended their complaint in order to challenge the subject compliance order issued by the U.S. Environmental Protection Agency prohibiting the Sacketts from modifying the wetlands on their property on the basis that the EPA possessed jurisdiction over the wetlands at issue pursuant to the Clean Water Act (CWA).  

As previously explained by ELM here, when SCOTUS granted certiorari earlier this year, Sackett had followed a circuitous journey back up through the appellate courts, the last step of which involved the Ninth Circuit applying Justice Kennedy’s “significant nexus” test, in which a court finds that jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. Applying this test in Sackett, the Ninth Circuit concluded that the EPA had “reasonably determined that the Sacketts’ property contain[ed] wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA …”, thereby prohibiting the Sacketts from developing the property. The Sacketts appealed, arguing that the governing standard applied should have been not Justice Kennedy’s, but one used by Justice Scalia in a plurality opinion in another CWA case, finding that “waters of the United States” was a term extended only to “relatively permanent, standing or flowing bodies of water,” and to wetlands with a “continuous surface connection” to such permanent waters. 

Accordingly, SCOTUS limited the Sacketts’ petition to the question of which — Kennedy’s or Scalia’s — is the proper test when determining whether wetlands are “waters of the United States” under the CWA. Since the court granted the Sacketts’ petition, at least two dozen amicus briefs have been filed by a variety of industry groups and developers, as well as by dozens of conservation groups, native tribes, and even members of Congress. 

Last week, on the first day of its new term, SCOTUS heard arguments in Sackett for almost two hours. First, counsel for the Sacketts argued that the court should apply the more demanding Scalia standard in determining whether the CWA covers the wetlands at issue. Counsel posited that, under Scalia’s test, a wetland can be regulated only if it flows into a neighboring water that is “water of the United States” – or, in other words, a waterway for interstate commerce. Moreover, such a test could be easily understood by regular American citizens when assessing whether their wetland property is covered by the CWA. 

Overall, several of the justices were skeptical of the idea that the CWA’s application to a given wetland should depend upon whether water flows from the wetland to a larger body of water. As pointed out by new Justice Ketanji Brown Jackson, this rule application would impede Congress’s goal of having the EPA oversee and protect “traditional navigable waters” if water emanating from the wetlands at issue simply does not flow directly into traditional navigable waters. Justice Brett Kavanaugh pointed out that the EPA has unambiguously found that wetlands can be covered by the CWA even when separated from “traditional navigable waters” by natural barriers or obstacles (i.e., levees), and that administrations for roughly five decades have understood such wetlands as being covered by the CWA. 

Counsel for the EPA took the opportunity to emphasize Justice Kavanaugh’s point by modifying the question before the court asking, instead, if wetlands will lose protection under the CWA simply because they have been separated from larger, traditional navigable waters by a natural barrier. In response, echoing some of his colleagues on the bench, Justice John Roberts wanted to know if the water is not required to flow continuously from the wetland at issue to the larger body of water for the CWA to apply, what kind of connection is required then? Jumping off the Chief Justice’s line of questioning, Justice Neil Gorsuch inquired as to when an owner’s property, separated from the larger navigable waters by whichever barriers, is no longer considered “adjacent” to the navigable waters and thereby too far for the CWA to apply. How, he wanted to know, would a property owner know which barriers prevented the application of the CWA and which did not, a particularly important question given the financial obligations involved in restoring wetlands. Counsel for the EPA responded that a property owner need only ask the Army Corps of Engineers if the CWA applies to his or her property. Justice Sonia Sotomayor also expressed discomfort with the idea that the EPA’s application and use of definitions under Justice Kennedy’s “significant nexus” test could be too indeterminate in practice. In sum: it seems as if the justices struggled to see how close cases — instances in which it is debatable as to whether wetlands are sufficiently blocked from navigable waters and thereby not covered by the CWA — could be fairly assessed under the CWA. 

Although the justices did seem open to considering the problems experienced by property owners such as the Sacketts, the large majority of the court seemed concerned about the narrowness of the more stringent Scalia test being in contravention of the CWA. This concern does not eliminate the possibility, however, that SCOTUS might find that the CWA itself is perhaps too open-ended in that it fails to provide clarity as to when a wetland is too far from navigable waters to have the CWA apply. Thus, based on oral argument alone, it was not entirely clear whether the court will adopt the Sacketts’ preferred, more-stringent Scalia test and jettison the Kennedy test. What is clear is that, ultimately, the court will have to balance the need to protect the nation’s waterways with the wish of property owners to have more certainty as to when their property can be deemed off limits for development by the EPA under the CWA.