ARGUMENT ANALYSIS

Justices ponder Clean Water Act’s application to wetlands in Jackson’s first oral argument

The Supreme Court returned to the bench on Monday for the start of its new term. The justices did not waste any time in getting down to business, hearing argument in a long-running dispute over an Idaho couple’s efforts to build a home on land that they own – but which the Environmental Protection Agency has deemed a “wetland.” At the end of nearly two hours of argument in Sackett v. EPA, the justices appeared torn between wanting to protect the nation’s waters and the desire to have more clarity for property owners, who can face stiff fines for violating the Clean Water Act.

The case centers on the interpretation of the CWA, which prohibits the discharge of pollutants, including rocks and sands, into “navigable waters.” The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas”; swamps, bogs, and marshes can all be regarded as “wetlands.”

The plaintiffs in the case, Michael and Chantell Sackett, want to construct a house on an undeveloped lot that is 300 feet from Priest Lake, a large lake near the U.S.-Canada border in the Idaho panhandle. Their legal battle began shortly after they began to prepare the land for construction back in 2007 and received a notice from the EPA to stop work because the property contains wetlands protected by the CWA. That notice led to years of litigation, including a prior trip to the Supreme Court in 2012.   

On Monday, the Sacketts’ lawyer, Damien Schiff, urged the justices to adopt a more stringent test to determine whether the CWA applies to a particular wetland. Under that test, Schiff explained, a wetland can be regulated only if it blends or flows into a neighboring water, and that water must be a “water of the United States” – that is, a channel for interstate commerce. Such a test, Schiff argued, is most consistent with the text of the CWA, and it is easy to administer: “Ordinary citizens,” Schiff stressed, “can use their own eyes to determine” whether their property is a wetland covered by the CWA.

Several justices pushed back against the suggestion that the EPA’s application to a particular wetland should hinge on whether water flows directly from the wetland to a larger body of water. In her first appearance on the bench since she was sworn in as the court’s newest justice last summer, Justice Ketanji Brown Jackson stressed at several points that such a rule would be inconsistent with Congress’s goal of protecting “traditional navigable waters,” which can be significantly affected by the quality of nearby wetlands and other tributaries, even if water from those wetlands does not flow directly into the navigable waters.

Schiff countered that Congress’s goal of protecting the chemical, physical, and biological integrity of navigable waters does not necessarily mean that water quality must be protected “at all costs.” Otherwise, he told Jackson, the EPA and the U.S. Army Corps of Engineers, which issues the permits for discharges into navigable waters, would effectively become “land-use administrators.”

Justice Brett Kavanaugh noted that for nearly 50 years the EPA has made clear that wetlands can qualify for coverage under the CWA even if they are separated from “navigable waters” by barriers such as berms, dikes, levees, and dunes. Why shouldn’t that rule continue to apply, Kavanaugh asked Schiff, when every presidential administration since then has regarded those wetlands as covered by the CWA?

Representing the EPA, Deputy Solicitor General Brian Fletcher echoed Kavanaugh’s point, framing the question before the court as whether wetlands lose the CWA’s protection because they are separated from a larger body of water by a barrier. For 45 years, he told the justices, they did not.

As they did with Schiff, the justices peppered Fletcher with questions. Chief Justice John Roberts pushed Fletcher on a point that seemed to resonate with some of his colleagues. If the water doesn’t have to flow continuously from a wetland to a larger body of water for the CWA to apply, Roberts asked, how much of a connection does there have to be?

Justice Neil Gorsuch had a related question. Noting that the Sacketts’ property is separated from Priest Lake by a road and a row of houses, he asked Fletcher how a landowner is supposed to know whether his property is close enough to the larger body of water that the CWA applies. Could the CWA apply, Gorsuch asked, to a wetland that is three miles away? Two miles away? And “if the federal government doesn’t know,” Gorsuch said, how is a property owner who might face jail time supposed to know?

Gorsuch later repeated his concern that the penalties for property owners who discover too late that their land is a wetland might be draconian.

Schiff agreed, stressing that a property owner could face not only civil and administrative penalties, but also an ongoing financial obligation to restore the land and even criminal charges.

Fletcher tried to reassure the justices that a property owner would not inadvertently find himself facing hefty penalties or criminal charges. First, he noted, a property owner can seek a determination from the Army Corps of Engineers about whether his property is a wetland covered by the CWA; if it is, Fletcher added, the property owner can challenge that conclusion, including in court. And it would be “very unusual,” Fletcher continued, for the EPA to bring criminal penalties unless the property owner had willfully flouted the CWA.

Justice Elena Kagan asked Schiff whether there was a middle ground that would take into account the existing rules allowing the CWA to apply to wetlands even when they are separated from “navigable waters” from barriers like berms and levees, while at the same time addressing the Sacketts’ concerns about the “significant nexus” test.

Schiff initially allowed that courts could differentiate between natural and man-made barriers, while emphasizing that such a rule would still not be consistent with the text of the CWA. When Kagan pressed him again, he pointed to the Sacketts’ case, prompting her to respond crisply, “So your answer is no. Thank you.”

Justice Sonia Sotomayor returned to this question later on, telling Fletcher that she was “dubious” about how precise the EPA’s definition is in practice. Is there another test that is more precise and less open-ended, she asked?

Fletcher told the justices that the EPA and the corps are currently working on a new rule, expected by the end of the year, that may have more guidance for situations like these.

But Kavanaugh was less concerned about possible new rules or finding a middle ground. In his questions for Fletcher, he suggested that Congress, rather than the Supreme Court, should determine how to draw the line between what is and is not covered by the CWA. 

Schiff concluded his time at the lectern by urging the justices to adopt his rule, portraying it as a significant improvement over the current test. Although several justices seemed sympathetic to the Sacketts’ plight, it was less clear that a majority was willing to adopt their position in its entirety.

This article was originally published at Howe on the Court.