October 11, 2022

Clean Water Act Wetlands Jurisdiction: Could Adjacency Be the New "Significant Nexus"?

3 min

The U.S. Supreme Court's October 2022 term began with a bang: a new Justice on the bench, the public back in the courtroom for the first time since the pandemic—and two hours of argument about the scope of federal jurisdiction over "waters of the United States."

Sure, Clean Water Act jurisdictional debates may not be everyone's idea of an exciting morning, but the debate in Sackett v. EPA could change the way wetlands and other water features are regulated.

The Sacketts purchased property near a lake in Idaho 15 years ago, only to learn that EPA considered that property a federally regulated wetland. For years, the Sacketts fought EPA's finding. Jurisdiction under the Clean Water Act, they said, required a continuous surface water connection to a traditional navigable water like a lake. And their property had none.

The dispute between the Sacketts and EPA flowed from the Supreme Court's 2006 decision in Rapanos v. United States. The Court in Rapanos agreed that the federal government enjoys jurisdiction over traditional navigable waters. Beyond that, though, the Court was split. The swing vote, Justice Kennedy, found that federal jurisdiction required a "significant nexus" to navigable waters. Ever since, regulated parties like the Sacketts have been trying to understand exactly what the phrase "significant nexus" means.

During the Sackett argument, the Justices' questions did not fit a simple conservative-versus-liberal framework. Indeed, Justices across the political divide seemed hesitant to endorse either the rule proposed by the Sacketts or the Kennedy "significant nexus" test.

Several Justices asked about Clean Water Act section 404(g), which extends federal jurisdiction to "wetlands adjacent" to navigable waters. But that test has its own ambiguities. If wetlands can be "adjacent" to a navigable water without actually touching it, as several of the questions proposed, how close would the wetlands need to be? The answer isn't clear.

EPA rejected this adjacency test for a different reason. It argued that federal jurisdiction extends not only to wetlands adjacent to navigable waters, but also to wetlands adjacent to any water—navigable or not—with a significant nexus to a navigable water. That test, which focuses more on a technical hydrological connection to waters of the United States, could be as expansive as any that has ever been used to decide wetland jurisdiction.

Where does all this leave the Court? More than one Justice asked (some practically begged) the Sacketts and EPA for a middle ground—a way to clarify the test for wetland jurisdiction without it becoming too narrow or too broad. Neither party offered a plausible compromise. What's more, EPA is in the final stages of a new rulemaking that EPA's lawyer said would be published by the end of this year. That new rule likely will expand federal wetland jurisdiction.

So if the Court is looking for a compromise, it will have to find one on its own. Perhaps that means adopting the idea that wetlands can be "adjacent" to navigable waters without touching them. Or it might mean a relatively narrow decision in Sackett that will color the inevitable litigation over EPA's impending wetlands rule. Either way, the long-hoped-for bright-line test for wetland jurisdiction may be out of reach.