In defining which wetlands should be afforded Clean Water Act protection, Congress was explicit in passage of updated regulations in 1977.
In a nutshell, Congress intended wetlands adjacent to navigable waters of the United States to be afforded protection from pollutants.
But that fact seems to have escaped Supreme Court Justice Samuel Alito (perhaps he was napping in class) in his May majority opinion in Sackett v. EPA, a ruling that will significantly reduce the number of wetlands receiving pollution protection under the Clean Water Act.
Alito must have channeled his inner Gilbert and Sullivan to ignore the clear intention of the law.
“You like potato and I like potahto
You like adjacent and I like adjoining
Let’s call the whole thing off.
Alito rejects the 2006 Supreme Court ruling in Rapanos v. U.S., in which Justice Anthony Kennedy recognized the necessity to define adjacency:
“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.’”
Instead Alito favors the tortured logic of Justice Antonin Scalia’s plurality opinion in Rapanos that 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.”
“In sum, we hold that the CWA extends to only those ‘wet lands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters. Rapanos, 547 U. S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 22.”
Since Congress updated the CWA in 1977, there have been eight residents at 1600 Pennsylvania Ave. N.W. in Washington, D.C.: Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, Donald Trump and Joe Biden. There are massive differences in politics among them. But one remarkable constant has been administrative acceptance of the Army Corps of Engineers definition of “adjacent wetlands” to include not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.
There is a good reason Congress specifically wrote to protect wetlands adjacent to navigational waters of the United States. Pollution is able to move from place to place in the underground water table.
It seems as if Alito throws the adjacency baby out with the bathwater because the existing law is just too complicated and difficult to comply with.
Yes, it was. Rapanos v. U.S. was a legalistic train wreck. Before May’s Supreme Court ruling, just about any wetland could be classified by EPA under protection of the CWA. Or not. Landowners were required to navigate through a labyrinth of EPA bureaucracy at significant personal expense. The process could take years. Sometimes EPA reversed its rulings creating further uncertainty.
But Alito has gone too far in the opposite direction.
The Trump administration tried to narrow the scope of EPA oversight of wetlands through creation of a Navigable Waters Protection Rule. Although twice rejected by the courts the NWPR was modeled after Scalia’s plurality opinion in Rapanos. Using those standards the United States Geological Survey determined:
“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).”
That amounts to more than half the nation’s streams and wetlands.
Alito’s adjacent/adjoining justification is also cause for alarm due to the Supreme Court ruling last term in West Virginia v EPA. Writing for the majority, Chief Justice John G. Roberts Jr. noted:
“… in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
In using the word “adjacent,” Congress said what it meant and meant what it said. Justice Brett Kavanaugh said as much in his concurring opinion:
“The Court’s ‘continuous surface connection’ test disregards the ordinary meaning of ‘adjacent.’ The Court’s mistake is straightforward: The Court essentially reads ‘adjacent’ to mean ‘adjoining.’ As a result, the Court excludes wetlands that the text of the Clean Water Act covers — and that the Act since 1977 has always been interpreted to cover… In the end, the Court has no good answer for why Congress used the term ‘adjacent’ instead of ‘adjoining’ when Congress enacted §1344(g) in 1977.”
It is perfectly plausible for Supreme Court watchers to believe that the high court is increasingly overriding legislative decision makers. Isn’t it up to Congress to write pollution standards? Alito believes otherwise. And now the flawed continuous surface test is law.
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