From Jesse Richardson, WSC Legal Advisor
Sackett v. EPA Oral Arguments
Oral arguments in Sackett v. EPA were held before the United States Supreme Court on Monday, October 4, 2022. The case is another foray into the difficult question of what constitutes “waters of the United States” (WOTUS) under the Clean Water Act. For those of you who have seen my presentations on WOTUS and the pictures of rollercoasters that I use to represent the way the law has evolved, after reading the transcript of the arguments, I feel like I just got off of one of those rollercoasters. Buckle up and I will try to make this as painless as possible.
The Clean Water Act (CWA) covers discharges into “navigable waters”. Congress defined “navigable waters” as WOTUS, leaving the rest to the Environmental Protection Agency (EPA) and Corps of Engineers (Corps), who jointly administer the permitting program. Waters that are in fact navigable are clearly WOTUS. The regulations (developed by the EPA and Corps) also define tributaries of navigable waters and “adjacent wetlands” as WOTUS. If the “water” or wetland is determined to be WOTUS, no pollutants or dredge and fill material can be discharged without a permit.
The Sackett case focuses on when wetlands are WOTUS and really starts in 2006, when the United States Supreme Court decided Rapanos v. United States. Prior to the Rapanos case, the Court had decided that decision of the Corps to regulate “adjacent” wetlands as WOTUS was reasonable (1985). The Corps and EPA defined, and still define, “adjacent” in this context as “bordering, contiguous, or neighboring”. However, the case did not focus on the adjacency issue since this particular wetland actually abutted the navigable water. The Court had also decided that “isolated” waters or wetlands are not WOTUS (2001). The cases since 2001 tend to look at the question of whether a wetland that is “adjacent” to a tributary of a navigable water is WOTUS. Often these cases involve very attenuated connections where the wetland is adjacent to a ditch or non-navigable stream that flows to different ditches and streams, sometimes for miles, before reaching a navigable water.
The Rapanos case involved one of these cases and ended with a 4-4-1 decision. Justice Scalia wrote for the plurality that only wetlands “with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right , so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [CWA]”. This test limits adjacent wetlands to wetlands that abut navigable waters or their tributaries. Tributaries do not include, according to this test, waters with intermittent, physically remote hydrologic connections to WOTUS.
Justice Kennedy wrote the solo opinion in Rapanos. Since both Justice Kennedy and the four justices signing off on the plurality opinion would vacate the lower court opinion and send the case back for further consideration, that result garnered a majority of votes. But Justice Kennedy had a different test. Justice Kennedy said that if the wetland is “adjacent” to waters that are not navigable-in-fact, the wetlands must have a “significant nexus” to the navigable water. A significant nexus exists where the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters.
The Sacketts purchased property that was later determined to contain a wetland. Across the road from the Sackett property is another large wetland that is connected to a navigable lake. The Sackett property is about 300 feet from the lake. The Ninth Circuit Court of Appeals found that the Kennedy “significant nexus” test should apply and that the wetland on the Sackett property has a significant nexus to the lake. The Sacketts appealed and the United States Supreme Court accepted the appeal and stated that the question to be answered was “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act…” This case is important to the groundwater industry because at least one court has found that groundwater can have a significant nexus to navigable waters and thus be WOTUS, with permit requirements attaching.
A large number of groups filed amicus briefs in support of each side. Oral arguments were held on October 3, 2022.
Mysteriously, the oral arguments centered on a question not before the Court: whether the wetland on the Sacketts’ property is “adjacent” to the lake across the road. If so, the wetland is subject to the Clean Water Act and the Sacketts must get a permit. Everyone agrees on that issue. The question is the meaning of “adjacent”. The regulations define adjacent as “bordering, contiguous, or neighboring” but a majority of the Court in Rapanos rejected that definition.
However, in the oral arguments, 5 (Kagan, Sotomayor, Jackson, Barrett and Chief Justice Roberts) or 6 (Kavanaugh) seemed ready to rule that the wetland on the Sackett property was adjacent, accepting the definition in the regulation. That issue was not the issue before the Court and was not briefed by the parties. Unfortunately, the issue of which test should apply- the Scalia test, the Kennedy significant nexus test or a different test made up by a majority of the Court, was not addressed in the oral arguments.
With respect to the groundwater industry, a few portions of the argument are particularly relevant. First, Justice Sotomayor and the attorney for the Sacketts engaged in a rather strange discussion on whether subflow and groundwater are the same thing. The attorney for the Sacketts explained the water cycle and argued that if any subsurface connection made the wetland WOTUS, every wetland and puddle of water is likely WOTUS.
Secondly, and perhaps related, a number of Justices raised the Maui County case and seemed to think that the “functionally equivalent” test from Maui County was the same or very similar to the significant nexus test. Recall that the Maui County case addressed when contaminants traveling through groundwater to navigable waters amounted to a “discharge” requiring a permit under the CWA. Sackett addresses a very different issue- what is WOTUS- so it is strange to have the Court connect the two. This line of questioning is troubling because the Maui County test appears to make groundwater, at least in some cases, the equivalent of WOTUS, since a permit would be required for discharges to groundwater.
Third, and perhaps most importantly, the EPA attorney represented to the Court that the EPA does not believe that groundwater is WOTUS. The EPA expects to release a rule defining WOTUS “by the end of the year.” Perhaps that rule will specifically exclude groundwater, unlike the draft rule released in 2021?
Predictions and Important Points for the Groundwater Industry
It is always difficult to predict results based on oral arguments, but even more difficult in this case where the oral arguments were totally different than what was expected. The Court could ignore the issue before the Court and rule, as a majority of Justices seemed inclined to, that the Sackett wetland is “adjacent” to the lake and thus WOTUS. This ruling would not move the ball forward much, if at all, and would not clarify any issues important to the groundwater industry.
The Court could adopt the significant nexus test and define it in a way that is very similar to the Maui County functionally equivalent test. This ruling would mean that groundwater may become the equivalent of WOTUS where groundwater eventually makes its way to navigable water.
Finally, the Court could surprise everyone again by choosing Justice Scalia’s test or making up its own test. The result is very much in doubt.
For the groundwater industry, the fact that the EPA has stated in oral arguments that groundwater is not WOTUS is encouraging. Perhaps the rule released in the next few weeks will explicitly exempt groundwater. However, the inclination of some Justices to lump the significant nexus test with the Maui County functionally equivalent test could foreshadow more uncertainty around groundwater as WOTUS.
The only things that can be predicted with any certainty is that the uncertainty, and the wild roller coaster ride, is likely to continue. Where this ride stops is anyone’s guess.