June 1, 2023 at 11:08 a.m.
Supreme Court rolls back EPA regulatory authority over wetlands
After 16-year battle, the Sacketts can build a house
Specifically, in a 5-4 decision, the justices narrowed the definition of federal "Waters of the United States," limiting jurisdiction to only those waters that are navigable in fact and to those adjacent wetlands with a continuous surface connection to actual "waters of the United States," meaning that they are virtually "indistinguishable" from those waters.
Such a wetland must be "a relatively permanent body of water connected to traditional interstate navigable waters," justice Samuel Alito wrote for the majority.
The Environmental Protection Agency (EPA) has been finalizing a rule - which it has already followed in actual practice - that embodies a far more expansive definition, whereby any nearby wetlands that the government determines to have a "significant nexus" to navigable waters are considered waters of the U.S.
In a 9-0 principal decision, the court also said federal jurisdiction did not apply to the land of the Chantell and Mike Sackett, their case being the legal vessel for the broader ruling.
In 2007, when the Sacketts started to build a new home in Priest Lake, Idaho, the EPA and the U.S. Army Corps of Engineers blocked them; both agencies declared their property to be a wetland with a significant nexus to Priest Lake and ordered construction to be halted, as well as the site restored, under penalty of more than $40,000 a day if they did not do so.
This was their second trip to the Supreme Court.
In the wake of the decision, the Sacketts' attorneys were jubilant.
"The court's ruling returns the scope of the Clean Water Act to its original and proper limits," said Damien Schiff, a senior attorney at Pacific Legal Foundation (PLF), which argued the case for the Sacketts. "Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today's ruling is a profound win for property rights and the constitutional separation of powers."
The decision returns the definition of waters of the U.S. to that of a 2006 high court ruling known as Rapanos, in which Alito's plurality opinion also carried the day. In the new decision, Alito said the Clean Water Act (CWA), within which waters of the U.S. is defined, is itself to blame for years of litigation.
"The Act applies to 'navigable waters,' which had a well-established meaning at the time of the CWA's enactment," Alito wrote. "But the CWA complicates matters by proceeding to define 'navigable waters' as 'the waters of the United States,' which was decidedly not a well-known term of art. This frustrating drafting choice has led to decades of litigation, but we must try to make sense of the terms Congress chose to adopt."
In the end, Alito concluded, the Rapanos ruling was correct.
"The CWA's use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water' forming geographic[al] features that are described in ordinary parlance as 'streams, oceans, rivers, and lakes,'" he wrote.
The battle
According to the PLF, the Sacketts purchased their property in 2004 for $23,000 in a subdivision where they planned to build a modest three-bedroom family home. But then the federal government showed up.
"They obtained the necessary local permits, and in 2007, they began construction, only to have EPA officials swiftly and suddenly demand they stop," PLF argued in court. "The agency alleged the property was a protected wetland under federal jurisdiction and threatened the Sacketts with fines of tens of thousands of dollars per day if they continued to develop the property."
Among other things, the EPA claimed the Sacketts' construction violated the CWA because their property was a federally regulated "navigable water" over which the agency had legal authority. That was absurd, PLF argued, pointing out that there was no water anywhere on the property.
They also argued that the EPA provided them with no proof of any violation and no opportunity to contest its claims, and they asserted that the agency had no authority over their property.
For its part, the EPA argued that the Sacketts had no right to sue the agency. The case scaled the judicial system, from low courts to high; and, in 2012, the U.S. Supreme Court ruled unanimously that the Sacketts could in fact sue the EPA. It was only a procedural vote, though, the Sacketts had to actually go ahead and sue.
And that they did, and thus the second trip back to the Supreme Court after the Ninth District Court of Appeals ruled against them.
But the case is important beyond the Sacketts, the PLF argued.
"At stake is whether the EPA can expand the definition of 'navigable waters' - which limits their authority - to include any semi-soggy parcel of land in the country," it argued.
What's also at stake is administrative restraint, the group asserted. The EPA cannot claim more power than Congress gave it, PLF argues, and the EPA has brazenly sought to expand what counts as "navigable waters" ever since the Clean Water Act was enacted.
In its brief, PLF observed that the Sacketts' property contains no stream, river, lake, or similar waterbody: "Yet EPA persists in its view that the Sacketts must obtain federal approval to build on their lot," the brief states.
Indeed, the EPA contended that the Sacketts' proposed house required a CWA permit because Priest Lake is a navigable water, and a non-navigable creek connects to Priest Lake, and that non-navigable creek is connected to a non-navigable, man-made ditch, and that non-navigable, man-made ditch is connected to wetlands, and those wetlands are separated from the Sacketts' lot by a thirty-foot-wide paved road.
The EPA itself acknowledged that no water at all - surface or subsurface - flowed from the Sacketts' lot to the wetlands or to the ditch across the street.
Nonetheless, the EPA asserted, those latter wetlands were "similarly situated" to "dry wetlands" alleged to exist on the Sacketts' lot, and, taken together, those alleged wetlands on the Sacketts' property, aggregated with the wetlands across the street, bore a "significant nexus" to Priest Lake.
Decisions, decisions ...
None of the justices, liberal or conservative, were having anything to do with that position. But, while each of the justices agreed that the CWA did not apply to the Sacketts' property, they did not agree on a lot of other things.
For instance, Alito wrote the majority opinion for the court, joined by chief justice John Roberts and justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. But Thomas wrote a concurring opinion, joined by Gorsuch, and Kavanaugh wrote another concurring opinion that departed from his fellow conservatives, joined by justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Kagan wrote yet another concurring opinion joined by Sotomayor and Jackson.
For his part, Thomas wrote in his concurrence that the court should scrutinize federal regulatory authority more than it already does.
"However, like the Rapanos plurality before it, the court focuses only on the term 'waters'; it does not determine the extent to which the CWA's other jurisdictional terms - 'navigable' and 'of the United States' - limit the reach of the statute," Thomas wrote. "I write separately to pick up where the court leaves off."
Particularly, Thomas wrote, the court's opinion does not go far enough because it does not consider the extent to which the government is violating states' rights in its regulations.
Indeed, Thomas wrote, under the CWA, Congress could regulate waters only for purposes of their navigability (for example, by regulating obstructions hindering navigable capacity), but he wrote that even then its jurisdiction extended only to waters that "are, were, or could be used" as highways of interstate or foreign commerce.
Expanding that reach violates states' rights, Thomas argued.
"As the court correctly states, 'land and water use lies at the core of traditional state authority,'" he wrote. "Prior to Independence, the Crown possessed sovereignty over navigable waters in the colonies, sometimes held in trust by colonial authorities. Upon Independence, this sovereignty was transferred to each of the 13 fully sovereign states."
After that, Thomas argued, quoting case law, the people of each state held the absolute right to "all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the constitution to the general government."
"Thus, today, states enjoy primary sovereignty over their waters, including navigable waters - stemming either from their status as independent sovereigns following Independence, or their later admission to the Union on an equal footing with the original states," he wrote. "The federal government therefore possesses no authority over navigable waters except that granted by the constitution."
Thomas concluded that the court's new opinion curbed a serious expansion of federal authority that had simultaneously degraded states' authority and diverted the federal government from its important role as guarantor of the nation's commercial water highways into something resembling "a local zoning board."
But, he cautioned, wetlands were just the beginning of the problems raised by the agencies' assertion of jurisdiction in the case.
"Despite our clear guidance ... that the CWA extends only to the limits of Congress' traditional jurisdiction over navigable waters, the EPA and the Corps have continued to treat the statute as if it were based on New Deal era conceptions of Congress' commerce power," he wrote. "But, while not all environmental statutes are so textually limited, Congress chose to tether federal jurisdiction under the CWA to its traditional authority over navigable waters. The EPA and the Corps must respect that decision."
Kavanaugh breaks with conservatives
In his opinion, justice Brett Kavanaugh agreed that the significant nexus test was not appropriate and he sided with the Sacketts, too, but he disagreed with the Rapanos plurality test.
In particular, Kavanaugh disagreed with the majority's definition of 'adjacent.'
"The court concludes that wetlands are covered by the Act only when the wetlands have a 'continuous surface connection' to waters of the United States - that is, when the wetlands are 'adjoining' covered waters," Kavanaugh wrote. "In my view, the court's 'continuous surface connection' test departs from the statutory text, from 45 years of consistent agency practice, and from this court's precedents. The court's test narrows the Clean Water Act's coverage of 'adjacent' wetlands to mean only 'adjoining' wetlands."
But, Kavanaugh asserted, "adjacent" and "adjoining" have distinct meanings.
"Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like," he wrote. "By narrowing the Act's coverage of wetlands to only adjoining wetlands, the court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States."
Kavanaugh acknowledged that that definition of adjacent was derived from "long-standing agency practice," as well as ordinary meaning. Indeed, many dictionary definitions of "adjacent'"employ "nearby." The justice, noting the dictionary definitions, said they haven't changed since the CWA was enacted.
"Then as now, 'adjacent' means lying near or close to, neighboring, or not widely separated," he wrote. "Indeed, the definitions of 'adjacent' are notably explicit that two things need not touch each other in order to be adjacent. 'Adjacent' includes 'adjoining' but is not limited to 'adjoining.'"
What's more, Kavanaugh argued, by contrast to the Clean Water Act's express inclusion of "adjacent" wetlands, other provisions of the Act actually use the narrower term "adjoining."
"The difference in those two terms is critical to this case," he wrote. "Two objects are 'adjoining' if they 'are so joined or united to each other that no third object intervenes.' As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor's house is adjacent to your house even if separated by a fence or an alley."
In short, Kavanaugh wrote, the court's "continuous surface connection" test disregards the ordinary meaning of "adjacent."
"But in 1977, Congress itself expressly made clear that the 'waters of the United States' include 'adjacent' wetlands," he wrote. "And Congress would not have used the word 'adjacent' in 1977 if Congress actually meant 'adjoining,' particularly because Congress used the word 'adjoining' in several other places in the Clean Water Act."
In any event, Kavanaugh continued, the decisive point was that the term "adjacent" was unambiguously broader than the term "adjoining."
"On that critical interpretive question, there is no ambiguity," he wrote. "We should not create ambiguity where none exists. And we may not rewrite 'adjacent' to mean the same thing as 'adjoining,' as the Court does today."
There would be real-world consequences, Kavanaugh warned, including regulatory uncertainty and leaving important wetlands unprotected - he contended that "the scientific evidence overwhelmingly demonstrates 'that wetlands separated from covered waters by berms or barriers still play an important role in protecting neighboring and downstream waters.'"
That said, Kavanaugh also said the "significant nexus" test did not pass muster, but he did not opine about what test he would approve of.
Kagan had a similar but not exact criticism, saying that, like Kavanaugh, she would just stick with the text.
"[I]n ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby," Kagan wrote. "So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two. ... [in excluding all the wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, or beach dune], the majority's 'continuous surface connection' test disregards the ordinary meaning or, more precisely, narrows the scope of the statute Congress drafted."
What the majority did was enact a policy preference, Kagan alleged.
"So the majority shelves the usual rules of interpretation - reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges' policy preferences," she wrote.
As the majority conceded, Kagan wrote, the statute "tells us that at least some wetlands must qualify as 'waters of the United States,'" and it does something else, she wrote.
"More, the statute tells us what those 'some wetlands' are: the 'adjacent' ones," she wrote. "And again, ... 'adjacent' does not mean adjoining. So the majority proceeds to its back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power 'over private property' - particularly, over 'land and water use' - it must adopt 'exceedingly clear language.' There is, in other words, a thumb on the scale for property owners - no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting."
A dictionary of convenience
The majority opinion struck back at Kavanaugh's and Kagan's analyses, saying that an analysis of the text of the CWA statute shows 'adjacent' cannot include wetlands that are not already part of covered 'waters.'
"Dictionaries tell us that the term 'adjacent' may mean either 'contiguous' or 'near,'" Alito wrote. "'But construing statutory language is not merely an exercise in ascertaining 'the outer limits of a word's definitional possibilities.' Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby."
First, the statute only refers to adjacent wetlands in a provision regarding state permitting regulations, Alito wrote, a relatively minor part of the CWA. It would be odd, indeed, Alito continued, if Congress had "tucked an important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs."
"We have often remarked that Congress does not 'hide elephants in mouseholes' by 'alter[ing] the fundamental details of a regulatory scheme in vague terms or ancillary provisions,'" he wrote. "We cannot agree with such an implausible interpretation here."
Alito also observed that case law repeatedly described the "waters" covered by the Act as "open water" and suggests that "the waters of the United States" principally refers to traditional navigable waters. Indeed, the decision he quoted specifically determined than even an isolated pond was not "waters of the U.S."
Next, Alito pointed out that the text refers to "waters of the United States, including adjacent wetlands." Logically, the justice asserts - because wetlands are not open water - the text can only make sense if those adjacent wetlands qualify as "waters of the United States" in their own right.
In other words, he wrote, they must be indistinguishably part of a body of water that itself constitutes "waters" under the CWA. Indeed, he wrote, the concurring opinions would effectively amend and substantially broaden the statute to define 'navigable waters' as 'waters of the United States and adjacent wetlands.'
"But [the statute's] use of the term 'including' makes clear that it does not purport to do - and in fact, does not do - any such thing," he wrote. "It merely reflects Congress's assumption that certain 'adjacent' wetlands are part of 'waters of the United States.'"
Finally, Alito argued, it was also instructive that the CWA expressly "protect[s] the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution" and "to plan the development and use . . . of land and water resources."
"It is hard to see how the states' role in regulating water resources would remain 'primary' if the EPA had jurisdiction over anything defined by the presence of water," he wrote.
Ultimately, Alito wrote, nothing in Kavanaugh's and Kagan's separate opinions undermined the majority's analysis.
"Justice Kavanaugh claims that we have 're[written]' the CWA, and justice Kagan levels similar charges," he wrote. "These arguments are more than unfounded. We have analyzed the statutory language in detail, but the separate opinions pay no attention whatsoever to ... the key statutory provision that limits the CWA's geographic reach to 'the waters of the United States.' Thus, neither separate opinion even attempts to explain how the wetlands included in their interpretation fall within a fair reading of 'waters.' Textualist arguments that ignore the operative text cannot be taken seriously."
Richard Moore is the author of "Dark State" and may be reached at richardd3d.substack.com.
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