The Supreme Court heard oral arguments Monday in a case that could scale back the kinds of waters subject to federal regulation under the Clean Water Act, an outcome advocated by business groups and many congressional Republicans but opposed by the Biden administration and environmental groups.
The justices, at the request of an Idaho couple who ran afoul of the law when trying to build a home nearly 16 years ago, are expected to decide on what kind of definition should be applied when the Environmental Protection Agency and Army Corps of Engineers draft and enforce regulations on the “waters of the United States” under the Clean Water Act, a 1972 law that has been a source of endless regulatory back-and-forth and litigation in recent decades.
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The outcome could upend the existing “significant nexus” test used to justify the EPA’s determination that wetlands on and near the couple’s property connected it to a nearby lake, making the property subject to restrictions that opponents of such a broad definition insist make construction and other activities onerous for property and business owners.
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The court took the case, Sackett vs. Environmental Protection Agency, in January after the 9th Circuit Court of Appeals upheld the agencies’ determination that property owned by petitioners Michael and Chantell Sackett was properly deemed covered under waters of the United States, or WOTUS, which require special permitting in order to build upon.
The Sacketts began building a home near Idaho’s Priest Lake in 2007, after which the EPA notified them that wetlands near their property were subject to the agency’s WOTUS regulations, a determination upheld by the 9th Circuit.
Damien Schiff, representing the Sacketts, argued that the Clean Water Act’s charge to regulate WOTUS doesn’t grant agencies any authority to regulate wetlands, including “adjacent” wetlands like the Sacketts’ property, the definition of which was the subject of repeated exchanges during arguments.
“The plain meaning of ‘water,’ as elucidated by dictionary definitions and what have you, is streams, creeks, rivers, what have you — not wetlands,” Schiff said.
Some justices expressed skepticism of the argument that wetlands of the sort connected to the Sacketts’ property are beyond the agencies’ scope. Justice Brett Kavanaugh noted that previous administrations going back to the 1970s understood wetlands to be covered under WOTUS.
“Why did seven straight administrations not agree with you?” Kavanaugh asked Schiff, noting that even the Trump administration, which replaced the Obama administration’s broad WOTUS rule with a narrower one, considered adjacent wetlands separated from explicitly covered WOTUS waters by a dune or some other feature also to be covered under the CWA.
Justice Neil Gorsuch indicated support for locking down a clearer definition of “adjacent,” considering administrations have gone back and forth between readings of the CWA in making rules. Adjacency allows agencies to regulate waters that are adjacent to more clearly defined categories of WOTUS, such as interstate and intrastate lakes.
“If the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?” Gorsuch asked Brian Fletcher, counsel for the government.
WOTUS regulations have been subject to frequent litigation over the course of previous administrations, and rules crafted by both the Obama and Trump administrations had trouble standing up in court.
Environmental groups and Democrats have generally supported a broad definition of WOTUS, allowing the government to regulate more water features as a means of providing the best environmental protection. Business groups and many Republicans, on the other hand, seek a more narrow definition to preclude the regulation of things such as wetlands and ditches, which they argue makes it too difficult for landowners, including farmers, to comply with the law and avoid penalties.
The EPA, which is drafting its own WOTUS rule, had discouraged the court from taking the case in the first place, but it argued that agencies deserve discretion to refine what can be nonspecific laws into regulations.
Courts have recognized that “sometimes Congress gives us laws where the text isn’t susceptible to bright-line rules,” said Fletcher. “I think adjacency is one of those.”
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The EPA and the Corps expect to issue a rule by the end of the year.
