Clean Water Current

The U.S. Supreme Court began its October term by hearing oral arguments this week in the ongoing battle over the scope of federal Clean Water Act (CWA) jurisdiction in the case of Sackett v. EPA.  At issue in the case is whether the Sacketts need a CWA Section 404 permit to develop certain wetlands on their property, but before the Court are broader questions concerning the Act’s reach over wetlands as “waters of the United States” (WOTUS).

The Sacketts, represented by the Pacific Legal Foundation, have argued that only a narrow subset of wetlands – those with a continuous surface connection to waters that are part of interstate commerce – are subject to federal jurisdiction.  EPA and the Army Corps, by contrast, have taken the position that, among others, wetlands adjacent to jurisdictional tributaries with a requisite “significant nexus” fall under the Act’s provisions, per the test articulated by Justice Kennedy in the Court’s 2006 Rapanos decision. 

NACWA filed an amicus brief in the case earlier this year to both encourage the Supreme Court to affirm key exclusions for groundwater and other features from the WOTUS definition, and to combat claims made by certain amici that the CWA is an “unconstitutional delegation” of legislative authority due to its failure to include a more clear statement outlining its reach.

For their part, the Justices during oral arguments primarily focused on the potential scope of wetlands “adjacent” to traditionally navigable waters.  Such wetlands are expressly named in the text of CWA Section 404(g) as waters the Corps must maintain exclusive jurisdiction over even where a state assumes the 404 permitting program.  Several Justices indicated that Section 404(g) could be read to contradict the Sacketts’ restrictive application of the WOTUS definition to wetlands. 

Conversely, several Justices also pointed to significant concerns with the application of the “significant nexus” test and questioned whether it provided a clear enough standard by which to enforce a statute that carries potential criminal liability.  Similar to the 2020 County of Maui litigation, Justices asked both sides if there was a “middle ground” test the Court could apply in lieu of their stated positions. 

With respect to the issues briefed by NACWA, while the concept of WOTUS exclusions came up only in passing, there was some helpful discussion concerning the difference between relying on groundwater to establish a connection between a navigable water and a wetland, and holding that groundwater is itself a WOTUS.  Similarly, although references were made to the vagueness of the CWA’s text, the majority of the Justices did not seem focused on addressing broader issues of administrative authority in the case.

A decision in the case could come at any time before the Court ends its current term in June 2023.  NACWA will continue to keep members apprised of developments concerning the scope of WOTUS as they occur.  In the interim, please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.