On the eve of the 50th anniversary of the federal Clean Water Act, the U.S. Supreme Court heard argument on the case of Sackett v. EPA, which has the very likely potential to severely curtail the types of waters that are automatically protected by the Act.

The Clean Water Act (CWA or the Act) “restore[s] and maintain[s] the chemical, physical, and biological integrity of the Nations’ waters” by asserting jurisdiction over “waters of the United States” (often referred to as WOTUS). At issue before the Supreme Court is what is included in the definition of WOTUS—which waters are “jurisdictional” and therefore protected by the CWA. In particular the Court was focused on when and whether wetlands are covered by the Act.

WOTUS could perhaps be the most hotly contested CWA issue over the past 50 years. This issue has been a battle before the Supreme Court three times already and each of the past three presidential administrations have come out with multiple rules defining WOTUS. Yet we still don’t have a clear rule.

This is mostly because there was a 4-1-4 split at the Supreme Court in the 2006 case of Rapanos v. EPA. This means that there were two competing tests for jurisdiction: Justice Scalia’s “continuous surface connection” test, which would restrict jurisdiction to only those wetlands that that have a physical surface connection to waters; and Justice Kennedy’s “significant nexus” test which recognized that wetlands impact water quality of hydrologically connected waters, even if that connection is below the surface.  With no clear rule set forth by the Supreme Court, subsequent lower court decisions disagreed on how to apply the law, with most courts agreeing that Justice Kennedy’s significant nexus test is a minimum for jurisdiction, but no court holding that a water is jurisdictional only if it meets Justice Scalia’s “continuous surface connection” test.

The Sackett family have already been in front of the Supreme Court on just this issue. In 2004, Michael and Chantell Sackett bought a piece of property near Priest Lake in Idaho that was previously defined by the United States Environmental Protection Agency (EPA) as a jurisdictional wetland. Because of that, the couple was prevented from filling in the wetland without a CWA permit to build a house. The couple sued EPA, arguing that the CWA didn’t apply to their property because it wasn’t a WOTUS; the case made its way to the Supreme Court on procedural issues and was remanded to the District Court, which in 2019 upheld EPA’s determination that the wetland was jurisdictional under the “significant nexus” test (the wetlands were adjacent to and had a subsurface connection to a navigable body of water). 

The case presently before the Supreme Court asks “whether the [federal Court of Appeals] set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.” Essentially, the Sacketts are asking the court to reject the significant nexus test in favor of the more limiting “continuous surface connection” test offered by Justice Scalia. In fact, they are asking the Court to apply an even-more stringent two-part test that would go further than even Justice Scalia in Rapanos.

Over the past decade, EPA, state agencies, and many of the federal courts across the country have been applying the significant nexus test as the appropriate and scientifically-supported method for determining CWA jurisdiction. There has been much litigation over the agencies’ proposed WOTUS rules in that time, something that we don’t have to time to go into in this blog post (but see here if you’re curious). Suffice it to say, no administration and no agency has ever thought a test as limiting as the one presently offered by the Sacketts was an appropriate test – not even the previous administration’s proposed rule that so severely curtailed the jurisdiction of the CWA that it was labeled the “Dirty Water Rule.”

Although I’m not one to read tea leaves of the Supreme Court, overall, the justices seemed disinclined to wholesale reject that “wetlands” are clearly within the jurisdiction of the Clean Water Act. The focus of the questioning was around the term “adjacent” as it applied to wetlands, both as it is read in Section 404(g) of the Act (for those wetlands adjacent to traditionally navigable waters) as well as the “significant nexus” test (for those wetlands adjacent to other WOTUS, such as tributaries). Questions from multiple justices recognized that “adjacent” does not always require physical touching, nor have the federal agencies ever applied so stringent a limitation in making jurisdictional determinations. Many justices focused on the core purpose of the Clean Water Act - to protect and maintain the water quality of our Nations’ waters - as perhaps requiring a more inclusive definition than that being proposed by the Sacketts. These lines of questions bode well for the significant nexus test and recognition that physical surface barriers may not cut off CWA jurisdiction for adjacent wetlands.

Where some justices did seem a bit concerned, however, was on the practical implications of applying a jurisdictional test that requires analysis (such as the significant nexus test) and potential impacts to landowners. Worried about whether a landowner might know whether they had a jurisdictional wetland on their property, one line of questioning revolved around the cost of determining jurisdiction that the landowner might have to bear. In response, counsel for the federal government responded that a landowner could ask EPA to make that jurisdictional determination and that they will do it at no cost to the landowner. Counsel went on to explain that, should the landowner wish to challenge that determination, only in the most extreme large-scale development projects – i.e., not mom-and-pop building their single-family home – do we see costs for supporting studies reach into the hundreds of thousands of dollars.

Another line of questioning tried to imply that since all waters are connected, it would be nearly impossible to know when an impact can be cut off. But again, the response was quick that, as the government has been applying the test since 2006, there must be a “significant” connection to establish jurisdiction. Yes, sometimes there may be disputes about that but it is not an unworkable standard that must be rejected by the court.

There were many great lines of questions both supporting and questioning the government’s position in this case. Yet the reality of how agencies have applied the significant nexus test since 2006 has not borne these concerns out much. So, in light of the seeming support for the federal government’s position in this case, I question what impact, if any, might these types of questions have.

There will be much analysis over the next few days on this case, and we won’t really know what the justices are thinking until we see the final opinion. But I came away from today’s oral arguments (knock on wood) more positive than I thought I would.

WOTUS has been a major issue under the Clean Water Act for my entire legal career (I started law school a few months after Rapanos was decided). Pennsylvania has fairly strong water quality protections with our Clean Streams Law. Still, there are places where a weakened CWA would impact our streams, lakes, and wetlands. I believe in the need – and the inherent right – for clean water, and I was encouraged today by the Court’s acknowledgment and perhaps even support of the Clean Water Act’s stated purpose. After 50 years of the Clean Water Act, I still remain hopeful that we will meet that goal.