The U.S. Supreme Court appears poised to replace the "significant nexus" test for whether a wetland is jurisdictional under the federal Clean Water Act (CWA), focusing instead on a long-standing and equally long-debated statutory qualifier of "adjacency." Additionally, contrary to many observers' anticipation, the Court gave no indication of applying the "major question doctrine" recently invoked to limit the jurisdictional reach of the U.S. Environmental Protection Agency (EPA) in other contexts. But whether a given resource is jurisdictional under the CWA remains as murky as ever.
The case is Sackett v. EPA, the first oral argument of the October 2022 term and the first oral argument in which Associate Justice Ketanji Brown Jackson participated. At issue is whether the filling of wetlands on the Sacketts' residential lot requires a permit under Section 404 of the CWA. The lot is in the midst of an existing and improved residential subdivision, and it is separated from Priest Lake, 300 feet away, by a new roadway. Having "filled" the lot and an identified wetland with gravel for construction of their home, the Sacketts face a broad array of civil and potentially criminal sanctions under the CWA for failing to obtain a permit. This is the Sacketts' second visit to the Supreme Court.
Mindful that Court observers should remain ever reticent to read too much into the proverbial tea leaves of any judicial oral argument … the justices were quite open and telling as to what is and is not on the table in Sackett. The most recent pronouncement by the Court on the issue was Rapanos v. United States in 2006. There, the Court was fractured 4-1-4. In Rapanos, the four-member conservative plurality would require a "relatively permanent" surface water connection to extend jurisdiction from a navigable-in-fact water to a non-navigable adjacent resource. The four-member liberal minority would have upheld the government's theory of jurisdiction. The sole deciding vote, Justice Anthony Kennedy, joined the conservatives solely on the ultimate decision, but utilized a new test in which no other justices joined to make his decision. Finding that the government had failed to establish that the Rapanos wetland in question had a significant nexus to a navigable water, he joined the conservatives in rejecting the assertion of CWA jurisdiction on the record before the Court.
Even though only one Rapanos justice espoused the so-called significant nexus test for jurisdiction, it has virtually become the law of the land nationally. But based in particular on the comments of Justice Sonia Sotomayor in the Sackett argument—she being a likely advocate for upholding the significant nexus test—the Court appears poised to reject further reliance on a significant nexus basis to establish jurisdiction and, instead, is grappling with the CWA's express inclusion of "adjacent wetlands" in subdivision g of Section 404. At least twice, Justice Sotomayor posed to the advocates that if the test is not the relatively permanent surface water connection and will no longer be significant nexus, what should a yet-to-be-defined adjacency test look like?
But a seeming majority of the Court appearing to disagree with the status quo does not necessarily mean a win for the Sacketts. In pressing for jettisoning significant nexus in favor of a much narrower and restrictive standard, counsel for the Sacketts argued that the congressional intent behind the CWA Section 404 regime mandated a perceptible surface water connection. But at least two members of the conservative wing of the Court, Chief Justice John Roberts and Justice Brett Kavanaugh, appeared skeptical, noting at least twice during arguments that seven prior administrations of both parties have proposed regulations that allowed the exertion of jurisdiction even in the presence of a levee or other natural or man-made obstruction between the navigable water and the resource in question.
Two rounds of sparring were indicative of the quandary with which the Court is grappling. In one exchange, related to the Sacketts' argument of a relatively permanent surface connection being required, Chief Justice Roberts repeatedly asked counsel for the Sacketts how many months of the year such a surface connection could go dry and still not destroy the jurisdictional hook—three months of summer? Longer? Justice Neil Gorsuch was even more unrelenting in asking the government's counsel just how far from the navigable water a potential jurisdictional line might extend—three miles? Two miles? One mile? With the government's lawyer refusing to take the bait and define a specific distance, Justice Gorsuch asked how an average homeowner is to know where the line is if the federal government doesn't know or will not say.
The sparring over the differences between relatively permanent, significant nexus and adjacent appears to lay to rest at least one anticipatory question heading into the oral argument—WOTUS does not appear to be destined for categorization as a "major question" with which only Congress may grapple absent express agency delegation. Less certain, though strongly suggested, Justice Kennedy's unique reign as the sole author of the national governing test of jurisdiction appears to be coming to an end. But in the midst of those observations, whether the Sacketts must obtain a permit to build their home or whether a seemingly dry area may nonetheless be a "water" subject to the CWA remains ... muddy.
Should you have any questions regarding this or any other matters, please contact David C. Smith at firstname.lastname@example.org.