By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney
The Supreme Court held oral arguments in the case of Sackett v. Environmental Protection Agency on October 3, 2022. The case, which we discussed prior to the oral arguments, concerns the scope of “waters of the United States” (WOTUS), a key term in the Clean Water Act, and its application to wetlands. The Sacketts seek to build on a wetland on their property near a lake and its tributary, and thus are challenging the Environmental Protection Agency’s determination that the wetland is WOTUS. As discussed below, there appear to be several swing votes, and the Justices’ statements and questions did not provide clarity on the case’s likely outcome.
Each side presented its respective test for determining whether, and to what extent, wetlands constitute WOTUS. Damien Schiff, counsel for the petitioners, i.e., the Sacketts, began by articulating the petitioners’ proposed two-step framework for determining when wetlands are WOTUS. First, they would limit the category of “water” to “a hydro-geographic feature that in ordinary parlance would be referred to as a type of stream, creek, river, lake, or the like,” so a wetland “can be regulated as a water only to the extent that it blends into and thus becomes indistinguishable from an abutting water.” Second, the water must be “for all practical purposes, a navigable in fact water.” He claimed that the test was consistent with the text and purpose of the statute and easy to administer.
Brian Fletcher, counsel for the respondents, emphasized in his opening statement that the “question presented in this case is whether wetlands lose protection if they're separated from other waters by a barrier like a berm or a road,” but that “essentially undisputed scientific evidence shows that those sorts of barriers do not diminish wetlands' essential role in protecting the integrity of other waters.”
As usual for Supreme Court oral arguments, however, both parties’ opening statements were soon interrupted by questions from the Justices, which sought to clarify the parties’ views and the legal issues at stake.
“Wetlands Adjacent” in the Amended Clean Water Act
Several Justices discussed 33 USC § 1344(g)(1) (§ 404(g)(1) of the Clean Water Act) and questioned how it may inform the definition of “waters of the United States.” Section 404(g)(1) refers to “wetlands adjacent” to “all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast” as a subset of “navigable waters.” The provision was part of the 1977 amendments to the Clean Water Act, and its terminology of adjacency in relation to wetlands resembles the language of the Army Corps of Engineers’ earlier regulations defining WOTUS. Both sides’ briefs in Sackett discussed § 404(g)(1), with the agencies emphasizing and the Sacketts downplaying its importance.
Justice Kagan was the first to mention the provision, which Schiff acknowledged implied that wetlands adjacent to navigable waters are WOTUS, but he asserted that “adjacency in the context of 404(g) clearly means physically touching.” Kagan pointed to dictionary definitions of “adjacent” as evidence “that adjacency actually is not the same as touching or contiguity, that adjacency has something to do with proximity, of course,” and Chief Justice Roberts tentatively agreed with her. Justice Jackson questioned Schiff's view of adjacency in the context of Congress’s purpose for enacting the Clean Water Act: “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?” Schiff argued that the logic of the Sacketts’ interpretation balanced ecological concerns with federalism ones.
Justice Thomas downplayed the importance of § 1344(g), saying that in United States v. Riverside Bayview, “we suggested that it did not control the definition of waters or certainly did not have an overwhelming impact on the definition of waters.” Similarly, Justice Alito accused Fletcher of “reading an awful lot into a parenthetical in 1344(g),” especially in the context of “the clear statement rules that have been invoked on the other side, for example, the effect on federalism,” possibly referring to the “major questions doctrine” recently announced in West Virginia v. EPA. Justice Barrett, however, seemed to think the 1977 amendments should have at least some bearing on the definition of WOTUS.
The “Significant Nexus” Test
The Justices also asked questions about the “significant nexus” standard from Justice Kennedy’s opinion in Rapanos v. United States, a standard which in turn was based on prior Court decisions in Riverside Bayview and Solid Waste Agency of Northern Cook County v. Army Corps of Engineers. According to Kennedy, “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Justice Sotomayor, while questioning Schiff, interpreted Kennedy’s opinion to mean “that ‘adjacency’ defined wetlands that were adjacent to navigable waters and that he was applying the significant nexus test to deal with non-navigable waters that might be waters of the United States.”
Roberts sought from Fletcher a more precise description of the “significant nexus” standard as the Corps and EPA interpreted it, beginning by asking Fletcher whether an “ecological and biological connection between wetlands and navigable waters” was “enough to bring the wetlands into coverage?” Fletcher said that a “significant effect” or “reasonable proximity” was necessary, but acknowledged that “right now, the Corps and the EPA have not tried to reduce that to a bright-line rule.”
Kagan asked Fletcher to clarify some of his answers to Roberts. Fletcher explained: “In Rapanos, Justice Kennedy's concurrence said that for traditional navigable waters, he accepted that adjacency alone was sufficient to justify inclusion. But, for wetlands that were adjacent to tributaries further upstream, Justice Kennedy thought that some additional showing had to be made.” Fletcher also said the “significant nexus” language is a “limiting construction” to keep “waters of the United States” from including literally all waters in the country.
Under further questioning from Barrett, Fletcher acknowledged that the agencies’ actual view “would cover other waters even if they weren’t adjacent to navigable waters if they could satisfy the significant nexus test.” He argued, however, that the Justices did not need to accept this view to rule for the agencies, because the Sacketts’ wetland was adjacent to navigable waters under the correct understanding of the word “adjacent” as used in 33 USC § 1344(g)(1).
Other Challenges to the Sacketts’ Position
Sotomayor pointed out that the Sacketts’ view of “adjacent wetlands” was even narrower than that taken by the Trump administration. Justice Kavanaugh seemed to be thinking along similar lines when he remarked that according to his understanding, “every administration since 1977... has stuck with adjacent wetland includes those wetlands separated by berms, dunes, dikes, or levies from the navigable water.”
Barrett worried whether by Schiff's reasoning, “wetlands fall in another world where neither states...nor the federal government can regulate them?” Schiff's reply that “there will be many wetlands that will still be regulated” did not seem to entirely satisfy her.
Distinctions and Details
Sotomayor asked Fletcher whether the Sacketts’ wetland was WOTUS because it was adjacent to Priest Lake 300 feet away, or because it was adjacent to a tributary to Priest Lake even closer to the wetland. Fletcher said that “the agencies do think and argued previously that the wetland is adjacent to the lake itself,” but that they only argued it was adjacent to the tributary before the Ninth Circuit.
Sotomayor also asked Schiff about the distinction between subsurface flow and groundwater. Schiff denied that there was any legal distinction between the two terms.
Roberts asked Schiff how the Sacketts’ proposed framework handled bodies of water that are dry for a portion of the year. Schiff did not commit to an answer but asserted that the “shortcomings” of “the only other game in town, the significant nexus test” are “orders of magnitude greater” than the line-drawing problems raised by the Sacketts’ proposed framework.
Jackson asked Schiff if his test would require “visual indistinguishability” between water and wetland for the wetland to be adjacent, and whether that would lead to more line-drawing disputes. Schiff’s response was somewhat ambiguous, but he seemed to deny the line-drawing problem in practice by conceding that courts should defer to agencies regarding whether there was visual indistinguishability.
Search for a Compromise
Several Justices appeared to be searching for some sort of formulation for a compromise decision. Kagan asked about a possible compromise test for adjacent wetlands in between significant-nexus and continuous-surface-flow. Schiff did not appear to think a coherent compromise position was possible, even when Justice Gorsuch suggested a “geographic proximity” test.
Similarly, Sotomayor asked Fletcher about possible compromise standards. Fletcher pointed out that the rulemaking for a new definition of WOTUS was still ongoing, and that the agencies may find a more precise way of drawing the necessary lines than the current tests do. Kavanaugh asked Fletcher, “Is it possible for you to be correct about the adjacent test as articulated so far, but the Sacketts win?” Fletcher did not, however, think that this was possible.
Procedures and Consequences
Several of the Justices expressed concerns about the inability of either side to draw specific lines around their respective tests. In particular, Justices Alito, Gorsuch, and Kavanaugh questioned Fletcher about the fairness of the agencies’ interpretation of WOTUS and procedures for determining covered wetlands in light of the potential penalties for Clean War Act violations. “If the federal government doesn’t know,” Gorsuch asked, “how is a person subject to criminal time in federal prison supposed to know?”
Following up on Gorsuch’s questions, Kavanaugh asked Fletcher to address concerns about “mens rea and not punishing innocent people who make a mistake.” Fletcher pointed out that “the civil penalties provisions direct courts to consider things like essentially mens rea or culpability in deciding the amount of civil penalties.” He acknowledged that the Clean Water Act provides for “potential criminal liability for negligent or knowing violations,” but asserted that in practice, “criminal prosecutions are brought only when there's some sort of serious aggravating conduct,” and suggested that if someone was criminally prosecuted under the Clean Water Act and “didn't have fair notice, they could always bring an as-applied vagueness challenge.”
Jackson, inquiring further about the agencies’ procedures, asked Fletcher to explain the jurisdictional determination process. Other Justices asked further questions about this process, with Barrett asking about the effect of a jurisdictional determination that a wetland is not WOTUS. Fletcher explained that such a determination was binding on the Corps and the EPA, but only for a five-year period.
The discussion of potential criminal applications of the Clean Water Act suggests that some Justices may be considering applying the rule of lenity, the principle that ambiguous statutes should be construed favorably to criminal defendants.
The oral arguments left the outcome of the case in doubt. While Justices Gorsuch, Alito, and Thomas appeared to side with the Sacketts, Chief Justice Roberts and Justices Kavanaugh and Barrett asked both sides difficult questions and made statements suggesting indecision in how they would decide the case. Justice Jackson appeared firmly aligned with the agencies. Justices Kagan and Sotomayor seemed sympathetic to them too, but also questioned the lawyers whether there was some form of a compromise that the parties could accept.
A decision in the case will be issued during the Court’s term, which ends in June 2023. In the meantime, the agencies’ proposed rule, which again seeks to define “waters of the United States,” awaits Office of Management and Budget review prior to its issuance. The rule is expected to be promulgated before the Court issues its decision in Sackett. It will be interesting to observe whether the new rule’s definition is referenced in or impacts the Court’s decision.
 474 US 121 (1985).
 142 S. Ct. 2587 (2022). We discussed this case at https://blog.sullivanlaw.com/enviroenergyinsights/ussc-curtails-epa-use-of-clean-air-act-regulations.
 547 U.S. 715 (2006).
 474 US 121 (1985).
 531 U.S. 159 (2001).
 Rapanos at 780 (Kennedy, J., concurring in the judgment).