The Supreme Court had tough questions for both lawyers in a widely watched case that, as Justice Brett Kavanaugh put it, “is going to be important for wetlands around the country.”

The case involves an Idaho couple stymied from building a home on their land because of the presence of wetlands the Environmental Protection Agency concluded are close enough to “navigable waters” to be deemed jurisdictional under the Clean Water Act.

Dozens of trade and environmental groups, corporations, scientists, lawmakers, states and others have weighed in either on the side of Chantell and Michael Sackett or the side of the federal government.

The justices seemed to be looking for a way to clearly define a test under the CWA that would be readily understandable to the average landowner – a standard that neither Congress nor federal agencies have been able to achieve, as the question of what constitutes “waters of the U.S." continues to prove difficult for successive administrations to answer.

“I think that the justices had concerns with both sides,” Damien Schiff, an attorney for the Sacketts, told Agri-Pulse after the arguments. “They had a lot of questions with respect to the line-drawing standard that we've offered. But I think they had even more concerns with the significant nexus test, in part because it is difficult to apply.”

Schiff observed that Acting Solicitor General Brian Fletcher, arguing for EPA, “noted that the agencies don't like to draw bright lines." The court, Schiff thinks, "wants to improve on the status quo. And so I think that whatever they do, it will be at least a clearer test than what we have now.”

The Sacketts have proposed a test that would require a continuous physical surface water connection between a wetland and features ordinarily considered as waters under the law, such as a river, lake or stream. As Schiff put it to the court, “it can be regulated as a water only to the extent that it blends into and thus becomes indistinguishable from an abutting water.”

The significant nexus test refers to the standard put forth by former Justice Anthony Kennedy in the court’s 2006 Rapanos decision, which says “[W]etlands 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.’"

During the arguments, Fletcher said the distance from a wetland to a navigable water is not sufficient to determine whether the wetland should come under the purview of the CWA. 

“I am sympathetic to the idea of, how does the landowner know under the standard whether their land is covered,” Fletcher said. “The agencies have told me they do not draw bright-line rules.”

Justice Neil Gorsuch pressed him, asking how many miles from a navigable water a wetland could be, yet still be jurisdictional. Fletcher consistently demurred, but did disagree with Justice Clarence Thomas’s assertion that in the Georgia Lowcountry, where Thomas is from, he wouldn’t be able to tell where the wetlands are.

“I think that if you have an isolated body of water, an isolated farm pond or something like that, there are some things that are categorically excluded” from regulation, he said.

Fletcher also said a test similar to that proffered by the Sacketts was debated but never adopted by Congress when it amended the CWA in 1977.

The difficulty of determining which wetlands are covered under the act was illustrated by an exchange between Chief Justice John Roberts and Schiff, in which Roberts asked whether a wetland that dries up in the summer but is otherwise wet, would be covered.

“This is one of the cases at the margin," Schiff responded. "With respect to any legal role, there's going to be difficult cases, and perhaps that could be reduced through further agency rulemaking.”

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Justice Ketanji Brown Jackson, hearing her first arguments as a member of the court, emphasized the CWA’s purpose – "to restore and maintain the chemical, physical, and biological integrity of the nation's waters." 

“Are you saying that neighboring wetlands can't impact the quality of navigable waters?” she asked Schiff.

“Not at all,” he answered. “However, it's also important to acknowledge that Congress was balancing concerns here. On the one hand, there is a water quality issue, but on the other hand, there's a very important federalism issue so important that, actually, Congress put in the text of the act that one of the purposes of the act is to preserve traditional state authority over land and water resources.”

Schiff said after the arguments that he believes the court, “certainly the majority, maybe all the justices, realized that they’ve got to improve the status quo and we hope that they do so in a way that respects the property rights of people like the Sacketts.”

EPA and the Army Corps of Engineers are due this fall to issue a final rule that they say will return regulations to their pre-2015 status – before the Obama administration came out with a rule that, as with the Trump 2020 rule that replaced it, faced problems in the courts.

Given the confusion caused by the definition of WOTUS, this latest version of the court will have its hands full trying to craft a jurisdictional standard that can stand the test of time. 

Because of the importance of the case for wetlands all over the U.S., Kavanaugh said, “We have to get it right.”

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