On October 3rd, my colleague Damien Schiff argued Sackett v. EPA II, a critically important Clean Water Act case that will determine the scope of EPA’s authority to regulate wetlands under the CWA.

The CWA prevents the discharge of “pollutants” from “point sources” to “navigable waters,” defined in the Act as the “waters of the United States, including the territorial seas.” But the two agencies responsible for administering the CWA—the EPA and the Army Corps of Engineers—have interpreted the phrase “waters of the United States” so expansively that dry erosional features in the desert and residential lots have been subject to federal control.

The Sacketts have been to the Supreme Court once before. In 2012, the Supreme Court unanimously held that the Sacketts could seek judicial review of the EPA’s claim of authority over their homebuilding project. Now, in Sackett II, the question presented is “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).”

The Sacketts proposed a two-step framework for determining whether wetlands are waters of the United States, adopted in part from Justice Scalia’s plurality opinion in Rapanos v. United States. Under the Sacketts’ two-step framework, a wetland may be regulated as part of the waters of the United States only when it (1) is “inseparably bound up” with a “water,” i.e. a feature that in ordinary parlance would be referred to as a stream, river, lake, or the like, so that it is difficult to say where the wetland ends and the water begins, and (2) the water is “of the United States,” i.e., subject to Congress’s power over the channels of interstate commerce. The EPA argued that the significant nexus test from Justice Kennedy’s Rapanos concurrence controls, such that wetlands may be regulated “if the wetlands, either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical, or biological integrity of other covered waters more readily understood as ‘navigable.’”

As the opening case of a new term—and the first argument that was open to the public for courtroom seating in over two years—Sackett made for an exciting morning at the Supreme Court. Here are some key observations and highlights from the argument:

The argument was long, lasting over two hours. It was difficult to anticipate whether the structure of argument would change after two years of Covid closures. The retention of the final question structure added a significant amount of time. Going forward, it is clear that advocates should be prepared to be on their feet far longer than the traditional 30 minutes.

The significant nexus test will likely be abandoned. The Justices were skeptical of the merits of the significant nexus test, with Justice Gorsuch in particular concerned about the lack of a limiting principle. During one exchange with EPA’s counsel, Justice Gorsuch pressed for an answer on how far is too far for federal regulation, asking if a distance of 3,000 feet or even three miles from a water could satisfy the test. Counsel for EPA admitted “I see where this is headed,” but was still unable to provide a clear answer, leading Justice Gorsuch to query, “so if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”

The fact that the CWA has criminal provisions was also a concern for Chief Justice Roberts, Justice Kavanaugh, and Justice Alito. Justice Alito queried whether the significant nexus test takes into account “any of the clear statement rules that have been invoked on the other side,” and suggested “that there may be a vagueness problem.” Justice Kavanaugh noted that the Court has historically been concerned about “mens rea and not punishing innocent people who make a mistake, an innocent mistake,” and called the criminalization of negligent violations in the CWA a “red flag.”

The Justices also had numerous questions about Section 404(g) of the CWA, which mentions “wetlands adjacent” to navigable waters. Some of the Justices appeared unconvinced by the Sacketts’ argument that “adjacent” in this context means actually touching, and not just nearby. The Justices used personal examples in attempts to ferret out the word’s meaning. Justice Kagan, referencing her life in New York City, suggested that two apartment buildings would be considered adjacent even if the buildings do not physically touch each other. Justice Thomas, referring to his upbringing in low country Georgia, noted that it was quite common for land to have standing water and asked whether areas like that are presumptively covered by the CWA. He also asked EPA’s counsel to use a different word than “adjacent,” saying he was “done with that word.”

Several of the Justices seemed to be searching for middle ground and a third test, perhaps based in part on adjacency. Justice Kagan asked the Sacketts’ counsel to “assume 1344(g) means more than you think it means,” and asked “if there’s any third position.” Justice Kavanaugh also hinted at a third way based on adjacency, suggesting that the section is “critical” to the case and also noting that “seven straight administrations” have not required physical touching for wetlands to be covered under the CWA.

Considering the Justices’ questions at argument, it would not be surprising if the Court develops a new test for wetlands jurisdiction. There seemed to be agreement that the significant nexus test is much too broad, but also concern that the Sacketts’ proposed test may be too narrow. It’s possible that a third test would be informed on some level by the reference to “wetlands adjacent” in 404(g).

While ascertaining meaning from the Justices’ questions during oral argument might be a muddy exercise, one thing is clear: the lower courts, the agencies, and the regulated public need a clear and administrable test for determining which wetlands are subject to federal regulation under the CWA. Only the Supreme Court can provide that clarity.

Disclosure: Paige Gilliard is one of the attorneys representing the Sacketts in the Supreme Court.

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