Wetlands/CleanWater Act Before The U.S. Supreme Court Explained

Among the first cases to be heard by the U.S. Supreme Court for the October 2022 term is Sackett v. EPA, No. 24-454 (2022). At stake is the definition of “waters of the United States” and the area of land that is subject to Clean Water Act wetlands protection or land available to be developed – an issue of enormous environmental and economic consequence.

University of Georgia School of Law Assistant Professor Adam D. Orford offers this analysis:

Please describe the case Sackett v. EPA.

The case involves a property in Idaho owned by the Sackett family. The property has wetlands on it that are connected to a nearby lake by groundwater, but not by a clear surface connection. The family cleared and began filling in the property for building a house but did not get a federal permit to do so. The federal government claims that the Sacketts have violated the Clean Water Act (CWA), which prohibits the unpermitted filling in of “waters of the United States.”

What is the chief legal question in the case?

The legal question is what qualifies as “waters of the United States” (sometimes abbreviated as WOTUS). This term, which is not well defined in the CWA, governs federal jurisdiction. The Supreme Court tried to provide an answer in the 2006 case Rapanos v. EPA, but issued a 4-4-1 decision, with the conservative and liberal justices opposed to each other, and Justice Kennedy issuing a solo concurrence. Since there was no majority reasoning, different presidential administrations have followed different interpretations, and federal courts have applied varying standards. By hearing this case, the Supreme Court is attempting to resolve the problems left open in Rapanos.

What are the key arguments of the case?

The Sacketts argue that the permissible meaning of WOTUS is limited to wetlands with a direct physical connection to a surface waterbody usable in interstate commerce – basically consistent with Justice Scalia’s opinion in Rapanos – and that their wetlands do not qualify.

The federal government argues that any wetland with a “significant nexus” to a surface waterbody – a case-by-case determination basically consistent with Justice Kennedy’s concurrence in Rapanos – would count; and that the Sacketts’ wetlands have a significant nexus to the nearby lake.

What are the possible impacts of the case? Why do they matter?

Wetlands protection is essential for environmental health, and construction on wetlands is widely understood to degrade water quality. However, much undeveloped land is hydrologically connected to surface water and, as in this case, has small wetlands on it. This ruling will impact the area of land in the United States that is subject to CWA wetlands protection, meaning land available to be developed – an issue of enormous environmental and economic consequence. A decision in the Sacketts’ favor could result in a significant reduction in federal permitting jurisdiction, which is not likely to be fully replaced by state protections.

What do you think will be the likely ruling in Sackett v. EPA?

It is very likely that the current court will adopt the reasoning adopted by the conservative justices in Rapanos. That opinion, written by Justice Scalia, also formed the basis for the now-vacated Trump Administration WOTUS regulations. Justice Scalia’s interpretation is more consistent with principles of statutory interpretation that the Supreme Court’s current conservative majority follow. Given its recent embrace of the Major Questions Doctrine in West Virginia v. EPA, the conservative majority may also demand that Congress use more precise language to delegate expansive land use control authority to federal agencies.

What are some future suggested actions for the states?

Whatever happens at the federal level, it is important to remember that these protections can also be provided by the states, and states can conserve their wetlands if they choose. This state action is something I highly recommend.

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