“So, if the federal government doesn’t know (what a regulated water is), how is a person subject to criminal time in federal prison supposed to know?” – Excerpt from Justice Gorsuch responding to the attorney for the USEPA

It has been a very busy year as it relates to environmental policies and regulations.  We have covered the quickly developing Environmental Justice issues, the designation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and the increased scrutiny over climate-related issues by the US Security and Exchange Commission.

However, we cannot forget that we are anticipating news on the definition of Waters of the United States (WOTUS) on two fronts – the proposed new rule (published in the federal register on December 7, 2021) as well as a ruling by the US Supreme Court of the United States (SCOTUS).

SCOTUS Hears Clean Water Act Case

As has been anticipated since announcing the nation’s highest court would (again) hear the Sackett v. EPA (Environmental Protection Agency) case, the Justices heard oral arguments (October 3, 2022).

The often debated and seemingly never settled definition of what constitutes a water of the United States or navigable waters dates back decades to the 1972 Clean Water Act (CWA). This definition is not a trivial matter.

For example, which waterways are included in the definition can restrict farming operations, residential developments, and other developments near intermittent streams, ditches, and wetlands.  Should someone develop in an area that is in an area defined as a federally-regulated water without a permit, penalties can be substantial including civil and criminal penalties.  And as in the Sackett Case that was recently heard before the SCOTUS – delays in developments are often long, drawn out, and burdensome.

The Sackett Case

The current case before the Justices involves Michael and Chantell Sackett who began development on a parcel of land for their home in 2007.

Here is some background on the case from the SCOTUS Blog, “The plaintiffs in the case, Michael and Chantell Sackett, want to construct a house on an undeveloped lot that is 300 feet from Priest Lake, a large lake near the U.S.-Canada border in the Idaho panhandle.  Their legal battle began shortly after they began to prepare the land for construction back in 2007 and received a notice from the EPA to stop work because the property contains wetlands protected by the CWA.  That notice led to years of litigation, including a prior trip to the Supreme Court in 2012.”

From all of the reported information, the Sacketts’ property doesn’t have any lakes, rivers, or streams.  However, as mentioned above, the U.S. Army Corps of Engineers had determined that the lot contains wetlands which qualify as navigable waters under the CWA.  Across the road from the Sacketts’ property, lies a man-made ditch that collects water from nearby wetlands. This ditch feeds into a creek that eventually flows into Priest Lake.

Under the CWA, you cannot discharge to a WOTUS without a permit.

Definitions from Previous Justices

An example of how this definition has confounded even the best legal minds in the United States comes from two previous Justices.

Justice Antonin Scalia wrote the CWA extended only to wetlands with a continuous surface connection to navigable waters.

Justice Anthony Kennedy adopted a broader test.  He said the CWA  covers wetlands that have a significant nexus to navigable waters.

Sackett Case Oral Arguments

That brings us to the Sackett’s case.

The lawyer for the Sacketts, Damien Schiff urged the Justices to adopt a more stringent test to determine whether the CWA applies to a particular wetland.  Under that test, Schiff explained, a wetland can be regulated only if it blends or flows into a neighboring water and that water must be a “water of the United States” – that is, a channel for interstate commerce.  Such a test, Schiff argued, is most consistent with the text of the CWA, and it is easy to administer: “Ordinary citizens,” Schiff stressed, “can use their own eyes to determine” whether their property is a wetland covered by the CWA (Source SCOTUS Blog).

Below we include several quotes from transcripts from the Podcast, The World and Everything in It, Legal Docket.

Justice Ketanju Jackson: (Replying to Schiff) “You say the question is which wetlands are covered, which I agree with, 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?  So are you saying that neighboring wetlands can’t impact the quality of navigable waters?”

Justice Neal Gorsuch: “If something cannot be reasonably classified as a water then the answer is simply Congress hasn’t authorized it.  And that really has to be why mere geographic closeness can’t justify the contratextual conclusion that a two-third-of-an-acre residential lot with a sewer hookup with an address and a mailbox is somehow considered a water of the United States.”

There was this exchange between the attorney for the EPA, Brian Fletcher and Justice Gorsuch and Justice John Roberts:

Justice Gorsuch: “I am sympathetic to the idea of how does a landowner know under the standard whether their land is covered.”

Brian Fletcher: “So I think we are talking about adjacency, and that may not be something that gives you bright-line rules, but it rules out things that are many miles away.”

Justice Roberts: “Does it? Are you sure the EPA would take that view?”

Brian Fletcher: “I’ve asked. The agencies have told me they do not draw bright-line rules. They do not think 300 feet is unreasonable for adjacency.”

Justice Gorsuch: “So how about 3,000 feet? Could be?”

Brian Fletcher: “I don’t know the answer to that, Justice Gorsuch.”

Justice Gorsuch: “Could it be three miles?”

Brian Fletcher: “I don’t think it could be…”

Justice Gorsuch: “Could it be two miles?”

Brian Fletcher: “That, again, when we start to talk about miles, that sounds too far to be adjacent, to reasonably be proximate to.”

Justice Gorsuch: “One mile?”

Brian Fletcher: “Again, I see where this is headed.” (Laughter can be heard in the audio).

Justice Gorsuch: “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”

This exchange demonstrates how complex this issue has become.

We need not just certainty around this issue of regulated waters, but reasonableness.  We hope when the dust settles on the latest round of defining regulated waters, we have a definition that is protective of our waters that is a common-sense definition.

This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years and has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

The blog was reviewed by Jeffrey Bolin, M.S.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, frequent speaker, and expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.  

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