Sackett II – Waters of the United States –The Definition Is Still Not Water Clear

By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section

On May 25, 2023, the United State Supreme Court (“SCOTUS”) again revisited the definition of Waters of the United States (“WOTUS”) in Sackett et ux v. U.S.EPA, et al., No. 21-454 (“Sackett II”). I’ve written several times in the past about this issue, which involves the scope of federal jurisdiction over wetlands, as set forth in the Clean Water Act, 33 U.S.C. §§1251 et seq. (“CWA”). Curiously, the decision in Sackett II does not specifically evaluate the facts associated with the Sackett’s case, and does not explain in depth why the Sackett’s lot (see below) is not a wetland subject to the authority of the U.S. Environmental Protection Agency (“EPA”), and the U.S. Army Corps of Engineers (“ACE”). We must infer that the Sackett lot did not meet the new test articulated by the SCOTUS majority. The justices split 5 (Roberts, Thomas, Gorsuch, Alito (who authored the decision of the majority) and Barrett) to 4 (Kagan, Sotomayor, Jackson and Kavanaugh (!)) on the test to be used to determine if a wetland is subject to federal control under the CWA. However, even more curious, all nine of the justices agreed with the judgment that the lot was not subject to the jurisdiction of the U.S. pursuant to the CWA (presumably no matter what test was used).

This case involves the misfortunate Sacketts, who purchased a lot “adjacent” to Priest Lake in northern Idaho. Priest Lake receives flow from the Selkirk Range and is known for its exceptional water quality. Priest

Lake is an intrastate lake, and is part of the Priest River system, and in turn is part of the Columbia River Basin, and so presumably Priest Lake is part of traditional WOTUS (although Justice Thomas and Justice Gorsuch are not so sure). The Sackett lot was not a waterfront lot and was located several hundred feet inland from the lake shoreline, and was also situated near a road which separated the lot from a large wetland area known as the Kalispell Bay Fen. There appear to be no surface water connections between the Sackett lot and Priest Lake, the Kalispell Bay Fen, or any tributaries.

From a scientific standpoint, however, you don’t need to be a wetlands delineation expert to conclude that the Kalispel Bay Fen, the Sackett’s lot and Priest Lake are probably hydrologically and ecologically associated with one another (but that is not the issue here – the question is whether the Sackett’s lot is subject to federal authority). The lot apparently was wet and the Sacketts placed fill on the lot in anticipation of building a home. The U.S. Environmental Protection Agency learned of the activity and ordered the Sacketts to cease the deposition of fill and remediate the site, claiming that the lot was a jurisdictional wetland adjacent to WOTUS, and that the deposition of fill into the wetland without a permit was illegal. The Sacketts sued, claiming their lot was not a wetland subject to the authority of the CWA. The District Court below found that the lot was subject to the CWA, and the Ninth Circuit agreed. SCOTUS granted certiorari to decide the proper test for determining whether wetlands are “waters of the United States.” 595 U. S. ___ (2022).

The core problem in this dispute relates to the definitions of “navigable waters” and WOTUS, as set forth in the CWA. This issue (as it relates to wetlands and other waters) has been contested for years and has been the subject of waxing and waning rulemaking which spans eight presidential administrations.

The relevant statutory language can be summarized as follows. The CWA prohibits the discharge of pollutants into only “navigable waters,” which it in turn defines as “the waters of the United States, including the territorial seas,” 33 U. S. C. §§1311(a), 1344(a), 1362(7), (12)(A) (2018 ed.). The “waters of the United States” also includes wetlands that are “adjacent” to waters covered by the Act—for example, wetlands that are adjacent to covered rivers or lakes. §§1344(g), 1362(7). The individual states, of course, are free to regulate the discharge of pollutants into waters which are not WOTUS.

SCOTUS had occasion to address this issue earlier but failed to resolve the question in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, the matter involved the filling of wetlands that were located miles from traditional WOTUS (and with no surface connection to WOTUS). A plurality opinion by Justice Scalia decried ACE’s excessive and over-broad interpretation of jurisdictional wetlands. In order to be a proper subject for regulation, Scalia opined, a wetland had to be permanently and directly attached to traditional navigable waters. This became known as the “continuous surface connection” test.

In an opinion concurring only in the Rapanos judgment, Justice Kennedy outlined a “significant nexus” standard, which he opined must be used on an ad hoc basis. So, the dispute in Rapanos was resolved, but a single test to determine WOTUS failed to attract a majority of votes in Rapanos. EPA and ACE ended up trying to utilize elements of both tests on a waterby-water basis, but certainly depended heavily on the significant nexus standard.

This is likely, in my view, because the science underpinning water quality improvement and wetlands protection techniques recognizes multiple and essential interconnections between groundwater, wetlands and surface waters. EPA and ACE likely have concluded that the goals set forth in the CWA (fishable, swimmable, drinkable waters) can’t be achieved without rigorous and extensive control over the broadest range of WOTUS, including wetlands with significant nexus to traditional WOTUS. Whether Congress actually intended this result was one of the issues addressed by the SCOTUS majority in Sackett II.

The new test adopted in Sackett II is presented as follows:

In sum, we hold that the CWA extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Rapanos, 547 U. S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 22. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.

Majority slip op., at 27.

To get to this result, the Sackett II majority analyzed several major subsidiary questions: (1) what is the historic meaning of “navigable waters?”; (2) is the “significant nexus” test too vague such that it subjects citizens to significant CWA civil and criminal penalties for conduct that the average citizen could not discern?; (3) did Congress in passing the CWA intend to authorize EPA and ACE to extend broad control over wetlands with a significant nexus to navigable waters and traditional WOTUS?; (4) how does that broad scope of federal control relate to the prominent role the states were given by the CWA?; (5) what does “adjacent” mean in the context of the statutory language?; and (6) should ecological concerns play a part in the statutory analysis?

Regarding the meaning of “navigable waters,” and WOTUS, Justice Alito concluded that navigable waters were traditionally intended to refer to actual avenues of water that could be traversed for commercial endeavors, and WOTUS traditionally means open waters like rivers, streams, lakes, oceans, and territorial seas. Justice Alito concluded that wetlands are not WOTUS except in very limited circumstances. Majority slip op., at 16-18.

Regarding the vagueness argument, Justice Alito opined that the significant nexus test was too complicated, too expensive, and too risky for an average citizen to understand and to comply with. Majority slip op., at 13-14.

Regarding the authority of the states under the CWA, Justice Alito notes that the CWA expressly “protect[s] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” §1251(b). Justice Alito notes that it would be difficult for the states to assume that role with an expansive definition of WOTUS. Majority slip op., at 17-18.

Regarding the meaning of “adjacent,” Justice Alito noted that an amendment to the CWA in 1977 gave EPA and ACE the authority to delegate to individual states the ability to regulate the discharge of dredge and spill materials into WOTUS, except for traditional navigable waters (which in turn included adjacent wetlands). CWA

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§1344(g)(1). Justice Alito had to concede that Congress intended some wetlands which were associated with navigable waters to be included in WOTUS. Majority slip op., at 18-19. However, Justice Alito decides that the way to harmonize this category of wetlands with the waters that constitute WOTUS, is to determine that those wetlands must be indistinguishably part of a body of water that itself constitutes “waters” under the CWA. Majority slip op., at 19. This condition therefore informs the meaning of “adjacent” in the CWA §1344(g)(1). Accordingly, in this context, “adjacent” means adjoining or contiguous or bordering (and not neighboring or nearby).

Regarding the ecological concerns that the EPA advanced about the consequences of a narrower definition of WOTUS, Justice Alito summarily states: “But the CWA does not define the EPA’s jurisdiction based on ecological importance, and we cannot redraw the Act’s allocation of authority.” Majority slip op., at 27.

Regarding the asserted intention of Congress (with respect to the addition of the term “adjacent” wetlands in CWA §1344(g)(1)), Justice Alito opined that “SCOTUS requires an explicit statement of intent if Congress wishes to alter the balance between federal and state power and the power of the Government over private property.” Majority slip op., at 23.

Against this backdrop, Justice Kavanaugh wrote an opinion concurring in the judgment (i.e., the Sackett’s lot is not subject to federal jurisdiction), but dissenting from the majority’s narrowing of the definition of WOTUS. Justices Kagan, Sotomayor, and Jackson joined in this opinion.

In his opinion, Justice Kavanaugh advances a largely textualist argument, and notes that:

In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.

Kavanaugh slip op., at 2 (note that Justice Kavanaugh also specifically rejects the significant nexus test).

Justice Alito dismisses this textualist argument summarily: “Textualist arguments that ignore the operative text cannot be taken seriously.” Majority slip op., at 27.

Justice Kagan wrote a separate opinion concurring in the judgment, but also disagreeing with the new WOTUS test and joining the Kavanaugh opinion. She concludes with the following:

So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. “[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” Id., at ___ (slip op., at 32). Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.

Kagan slip op., at 6 (referring to Justice Kagan’s dissent in West Virginia v. EPA, 597 U. S. ___, ___, ___ (2022) (in which SCOTUS struck down an EPA-mandated air pollution control measure using the then-new Major Decisions Doctrine)).

It is my view that the new test, while certainly reducing the scope of federal jurisdiction over wetlands (as predicted by Justice Kavanaugh), will continue to produce uncertainty, e.g., what does “indistinguishable” really mean (wetlands usually have a different appearance than open water)?; what is the consequence of temporary interruptions in continuous connections?; and what about storms or floods which sever continuous connections or create new ones?). So, despite a lot of statutory, historical, etymological, and policy analysis, the new test is not (in my view) “water clear.”

This federal court decision may not mean a sea change in Pennsylvania, since groundwater, surface water and wetlands are included in “Waters of the Commonwealth,” and Pennsylvania maintains a robust wetlands regulation program.

So, to paraphrase the polymath Benjamin Franklin: When the wetlands are dry, we will know the worth of wetlands.