The issue is defining exactly which waters and wetlands are protected under the CWA. So it's not surprising that the conflict would eventually end up in the laps of the U.S. Supreme Court, which heard oral arguments this month in the case Sackett v. EPA.
Back in 2007, the EPA told Idaho couple Michael and Chantell Sackett that they would need to obtain a CWA permit to build a home near Idaho's Priest Lake. The EPA said the property contained a wetland that fell under CWA jurisdiction.
The Sackett's property is like that old song, “The Skeleton Dance.” The lot was connected to a wetland – though separated by a 30-foot paved road – and the wetland was connected to a man-made ditch, and that man-made ditch was connected to a non-navigable creek, and that non-navigable creek was connected to Priest Lake, which … wait for it … was navigable.
In determining whether the wetland fell under the CWA, the EPA used Justice Anthony Kennedy's “significant nexus” test from the court's fractured 2006 ruling in Rapanos v. U.S. Kennedy was attempting to define “adjacency.” Kennedy's concurring opinion ruled:
“Wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters' if the wetlands either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other waters more readily understood as 'navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigable waters.' ”
So the Sacketts lose, right?
All in all, Rapanos was a train wreck of a ruling creating more questions than answers. There were five separate opinions. And none of them commanded a majority of the court.
In his plurality opinion, Justice Antonin Scalia ruled the waters of the United States include only relatively permanent, standing or continuously flowing bodies of water “forming geographical features” that are described in ordinary parlance as “streams … oceans, rivers, (and) lakes.”
Scalia found wetlands falling under the CWA must contain a water body of the United States that “has a continuous surface with that water, making it difficult to determine where the water ends and the wetland begins.”
Needless to say, the Sacketts much prefer Scalia's test – recall that 30-foot paved road. This takes us to last month's oral arguments. It's probably fair to say there are not five votes on the court to uphold Kennedy's significant nexus test. Justices mainly wrestled with the definition of the word “adjacent.”
It's possible the court will affirm Scalia's plurality opinion or perhaps tweak it to include some definition of adjacent underground waters. It's also possible, though less likely, that the court could rule that artificial barriers categorically defeat CWA jurisdiction.
A worse case outcome for EPA would be the court declaring much of the CWA void for vagueness. And vague the CWA certainly is.
Perhaps most telling in the two-hour oral argument was Justice Sonya Sotomayor asking for a life line in questioning Department of Justice Principal Deputy Solicitor General Brian Fletcher:
“Just one last question, and borrowing from Justice -- what Justice Kagan did before, as you can probably tell, some of my colleagues are dubious that this is precise enough definition, adjacency, to survive. So is there another test? Not the Rapanos test, not the adjacency test, not the significant nexus test. But is there another test that could be more precise and less open-ended than the adjacency test or the significant nexus test that you use? Is there some sort of connection that could be articulated?”
Fletcher didn't have much to offer.
The court is wrestling with WOTUS while the EPA is in the process of finalizing a “Revised
Definition of Waters of the United States” rule that is awaiting clearance from the White House. Publication in the Federal Register is expected before the end of the year.
Given the history of WOTUS it's extremely unlikely the Supreme Court ruling in Sackett will settle the issue with finality. It is guaranteed that environmentalists are going to come away unhappy.
A lot is at stake.
The Trump Administration wrote its Navigable Waters Protection Rule – twice rejected by lower courts – largely based on Scalia's plurality opinion in Rapanos. Using that standard, the United States Geological Survey found:
“Specifically, 69% of streams and wetlands were found to be non-jurisdictional, including 9,548 ephemeral features (mostly streams) and 12,895 wetlands that did not meet the NWPR’s revised adjacency criteria (and thus are non-jurisdictional under the NWPR). Ditches were also frequently excluded (3,849 individual exclusions).”
Ultimately, given what we've seen in the Supreme Court's first term last year holding a 6-3 conservative majority, almost anything is possible in redefining WOTUS. A Supreme Court decision in Sackett v. EPA is likely in early 2023.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at email@example.com.