The Supreme Court of the U.S. opened its October session by hearing arguments on a case regarding waters of the U.S. (WOTUS), a case where the decision will have overarching impacts on producers and what are considered waters and wetlands.
Sackett v. Environmental Protection Agency (EPA) is about an Idaho couple’s battle against the EPA’s Clean Water Act (CWA) and whether their property contains a wetland—a property where they want to build a house. Michael and Chantell Sackett have been battling against EPA for the past 15 years, and they headed to the Supreme Court for the first time in 2012.
On Oct. 3, the Sacketts headed to the Supreme Court for a second time for the justices to consider whether the U.S. Court of Appeals for the 9th Circuit erred in its August 2021 decision when it agreed the government had permitting authority over the couple’s property.
At the forefront of oral arguments during the two-hour hearing was the definition of the word “adjacent” and which streams and wetlands are considered federally protected under the CWA. Congress did not define “adjacent” in the U.S. Code when it updated the law in 1977, according to Bloomberg Law.
Then-Justice Anthony Kennedy’s “significant nexus” test in the 2006 ruling of Rapanos v. U.S. was intended to clarify “adjacent.” The test evaluated whether any pollution in a tributary of a navigable river or lake would affect the larger water body.
At the Oct. 3 hearing, justices discussed whether the significant nexus text is the most appropriate way to assert jurisdiction.
“Like the Sacketts, our nation’s farmers and ranchers would argue that it is not the appropriate test, and we hope that justices will create a limiting principle that will provide clear guardrails on how far the federal government can reach,” said Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation, in a “Newsline” podcast episode.
Oral arguments
“I think one of the most notable takeaways is the fact that a number of justices from various sides of the political spectrum recognized the shortcomings of the significant nexus test, and they really discussed the confusion for landowners in using that test,” Briggs said.
Damien Schiff, attorney for the Sacketts, argued in his opening statements that EPA has no authority to regulate the couple’s property under the CWA in its view of navigable waters. “Under no plausible interpretation of that term does the agency have such authority,” Schiff said.
He continued that EPA must establish two things before regulation. First, there must be a water that would be referred to as a type of stream, creek, river, lake or something similar. He noted that a wetland is none of those things and as such can be regulated as a water only to the extent that it blends into and becomes indistinguishable from an abutting water. Second, the water has to be a water of the U.S., or a navigable water.
“Now this test is vastly superior to the significant nexus test for a number of reasons. First and most importantly, the two-step framework closely adheres to the textual limits that Congress itself imposed on the agency,” Schiff said.
In addition, the test vindicates all of Congress’ purposes to preserve the state’s traditional preeminence over land and water resources, he continued. And finally, it’s an easy test to administer.
“Under this two-step framework, it’s clear that the Sacketts’ property contains no waters, much less waters of the United States, and so they should be entitled to a declaration that their property is not subject to EPA’s authority,” he finished.
Brian Fletcher, principal deputy solicitor general for the Department of Justice, opened his beginning arguments by noting that the consensus seemed to be that waters protected under the CWA include some adjacent wetlands. “The narrow but important 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,” he said.
“Overwhelming scientific evidence and essentially undisputed scientific evidence shows that those sorts of barriers do not diminish wetlands’ essential role in protecting the integrity of other waters,” he continued. “For 45 years, the EPA and the Army Corps have recognized that the presence of such a barrier does not categorically strip a wetland of the Act’s protections,” he said, asking the court to uphold that interpretation.
It is unclear what the Supreme Court’s ruling will be, but after Monday’s oral arguments, it seems a review over the proper designation test will be conducted.
The EPA and Army Corps of Engineers are still working on their proposed WOTUS rule. Briggs said the rule is currently being reviewed by the Office of Management and Budget and will likely be finalized by the end of 2022.
“But we remain confused as to why the agencies are insisting on moving forward with this rule. It makes more sense for them to wait until the Sackett decision is handed down,” she said. “And the introduction of this new rule is only going to add confusion to an already very confusing situation.” — Anna Miller, WLJ managing editor
