Expect New WOTUS Testing Rules by the End of 2022, According to Government Lawyer

“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett Kavanaugh said during the nearly two-hour argument on the opening day of the court’s term.

Lawyers yesterday tried to challenge the scope of the Clean Water Act, which could limit how much the EPA can protect U.S. waterways.

Several justices appeared ready to reject a key argument put forward by an Idaho couple behind the lawsuit. And the court’s liberals sought a compromise that would retain the government’s authority to regulate wetlands adjacent to lakes, rivers and other waterways.

The case stems from a 2007 property dispute, in which Idaho landowners Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it supposedly contained regulated wetlands.

What's at Stake

If the court sides with the Idaho property owners, environmental advocates say about half of all wetlands and roughly 60% of streams would no longer be federally protected.

“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett Kavanaugh said during the nearly two-hour argument on the opening day of the court’s term.

SCOTUS last term restricted the EPA’s authority to curb emissions from power plants.

In the Heat of the Argument

Justices Neil Gorsuch and Samuel Alito Jr. expressed the most skepticism about how broadly the government defines wetlands subject to regulation, offering targeted questions for the government’s lawyer, Brian H. Fletcher.

Gorsuch asked, “How does any reasonable person know … whether or not their land” is covered? Is the property subject to regulation if it is located three miles or two miles from waters subject to federal jurisdiction. Fletcher responded that there are not “bright-line rules,” but limits and government manuals that explain the process. Gorsuch then asked, “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”

Justice Ketanji Brown Jackson pushed back against suggestions that the regulations were unfair to the Sacketts or would likely result in criminal liability.

“Shouldn’t they have gathered information about the property prior to purchasing?” Jackson asked the Sacketts’ attorney. “You say the question is which wetlands are covered, which I agree with,” she said. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

WOTUS Boundaries

A key question in the case, Sackett v. Environmental Protection Agency, is how to determine how far from the water’s edge the Clean Water Act applies.

The court failed to reach consensus in a 2006 case, Rapanos v. United States. The 9th Circuit relied on the test put forward by Justice Anthony Kennedy, who provided the deciding vote in that case and said the wetland must have a “significant nexus” to regulated waters. Kennedy, now retired, watched the argument from the front row of the courtroom on Monday, the Washington Post reported.

The Sacketts’ attorney Damien M. Schiff asked the court to embrace the narrow interpretation proposed by Justice Antonin Scalia, the late conservative. Scalia’s definition limits regulation to wetlands with a direct “continuous surface connection” to “navigable waters.” Schiff said a wetland can be regulated only “to the extent that it blends into and thus becomes indistinguishable from an abutting water” and that the physical connection is essential.

“I’m not sure that’s right,” Roberts said. “You would readily say that a train station is adjacent to the tracks even though it’s not touching the tracks.”

Kavanaugh noted that presidents in both political parties had consistently interpreted the law to give the government jurisdiction over wetlands separated from water by dunes, berms and other barriers.

“Why did seven straight administrations not agree with you?” he asked Schiff.

New WOTUS Rules By Year-End

Justices Elena Kagan and Sonia Sotomayor pressed lawyers on both sides about the possibility of a new test for figuring out which wetlands are covered.

“As you can probably tell, some of my colleagues are dubious that this is a precise enough definition of adjacency to survive,” Sotomayor told the government’s lawyer. “Is there another test that could be more precise and less open-ended?”

By the end of the year, the Biden administration is expected to issue new rules that Fletcher told the court will “provide greater clarity to the regulated public on all parts of the test.”

Bottom line

While the court did not signal a clear outcome during its questioning, the current court has a history of looking skeptically at the federal government’s claim of regulatory authority over the environment when its powers are not clearly defined by law.

The three most conservative justices seemed to want to pare back the government’s environmental authority, while the court’s three more liberal members appeared to favor an expansive view. Some of the other justices sent mixed signals.