Waters of the United States at Issue Yet Again

The Supreme Court, in Sackett v. United States, has yet again waded into the complicated question of the scope of “waters of the United States,” and the fate of wetland regulation, under the Clean Water Act. This question has been the bane of courts, regulatory agencies (Army Corps of Engineers and U.S. Environmental Protection Agency), industry, and property owners ever since the modern Clean Water Act was enacted in 1972. Oral arguments in Sackett were held on October 3, 2022, the first day of the Court’s 2022 term, and provided no clear direction as to how the Court may ultimately decide the case.

The Clean Water Act regulates discharges of pollutants to “navigable waters,” which itself is unhelpfully defined in the Act as “waters of the United States.” Through a series of rulings over the past 45 years, the Court has attempted to clarify just what are “waters of the United States.” However, rather than clarify the landscape, the Court has added to the confusion.

First, in United States v. Riverside Bayview Homes, a 1985 case, the Court provided an expansive reading of “waters of the United States,” and held that wetlands adjacent to waters of the United States were subject to the Clean Water Act. The Riverside Bayview Court considered that federal jurisdiction under the Act was broadly defined within the parameters of the federal government’s commerce clause powers. More than a decade later, in 2001, the Court pulled back on Riverside Bayview, holding in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (“SWANCC”) that the touchstone of “waters of the United States” is navigability. In SWANCC, the issue was whether an isolated, interstate pond used by migratory birds could be subject to jurisdiction under the Clean Water Act. Ruling that it could not, the Court opined that even though there might be an interstate commerce connection to migratory birds, the term “navigable” had to be understood in accordance with its common usage.

Next, in 2006, a plurality opinion authored by Justice Scalia in Rapanos v. United States sought to further retrench the scope of federal Clean Water Act authority. However, Justice Kennedy authored a middle-of-the-road concurrence in Rapanos, arguing that federal authority is present under the Clean Water Act as long as a wetland adjacent to a tributary that is connected to a navigable-in-fact water has a “significant nexus” to a navigable water. Justice Kennedy’s concurrence has been generally considered the controlling opinion in Rapanos. More recently, in 2020, in County of Maui v. Hawaii Wildlife Fund, the Court held that although discharges to groundwater are not subject to jurisdiction under the Clean Water Act, where there is such close proximity between a point source discharge to groundwater and the groundwater’s flow to a navigable water, that discharge should be considered the “functional equivalent” of a direct discharge to the navigable water. As a result of these rulings, district and appellate courts have issued wildly varying interpretations of the law.

Now, in Sackett, the specific question facing the Court is what it means for wetlands to be “adjacent” to a navigable-in-fact water, with additional issues revolving around the significant nexus test. Under the regulations being challenged, it is essentially presumed that a wetland adjacent to a navigable water is subject to the Act, but that a significant nexus analysis must be applied to a wetland that is adjacent to a tributary of a navigable water. The question in front of the Court was whether a wetland must be touching a navigable water for it to be considered “adjacent” and fall with the jurisdiction of the Clean Water Act. A number of justices seemed to acknowledge that “adjacent” does not necessarily mean touching, but questioned what distance between the wetland and navigable water would render the wetland no longer “adjacent.” The conservative members of the Court also appeared troubled by the inability of a landowner to easily assess the jurisdictional issues absent employment of costly wetlands consultants. They were further concerned that a landowner wholly unaware that its property may be a wetland may be subject to civil and possibly criminal penalties. In response, the government’s lawyer pointed out that the Corps provides jurisdictional determinations at no cost, and in this case, there were reasons why Sackett should have known that the property had wetland implications, including the fact that a prior owner had conducted a jurisdictional determination.

As always, it is a fool’s errand to speculate what the Court will do. Although there seemed to be some acknowledgment by a majority of the justices that “adjacent” does not require physical touching, there were efforts to explore a standard that would provide more certainty. Of course, EPA and the Corps attempted to do just that during the Obama Administration, developing a regulation with objective standards, but were enjoined from implementing the rule after a series of challenges. Given the Court’s recent inclination towards overarching rulings that eviscerate long-standing laws and regulations that have been anathema to the more conservative jurists on the Court, it is always possible that this Court will use this opportunity to dramatically scale back the reach of the Clean Water Act, expanding on the SWANCC and Rapanos plurality opinions.

You can contact Joshua Bloom at jbloom@baylawgroupllp.com.

Bay Law Group LLP attorneys have decades of experience in all aspects of state and federal environmental, land use, and natural resources law, including compliance counseling, permitting, environmental aspects of business transactions, administrative proceedings, and litigation. Our attorneys are leaders in the field of environmental law and have written extensively on environmental law and policy.