The Supreme Court kicked off its 2022-23 term by hearing oral argument in Sackett v. Environmental Protection Agency (EPA), a seemingly shallow case that conceals surprising depths. On the surface, the justices will weigh in on what test courts should use to determine whether a private property deemed a “wetland” is subject to the EPA’s authority to regulate “waters of the United States” under the Clean Water Act.
In reality, what’s at stake is whether the right of private landowners to make use of their own property will be usurped by the EPA’s unauthorized expansion of the CWA that drastically increased the federal government’s jurisdiction over water. This case gives the Supreme Court an important opportunity to establish a clear and defined rule for federal jurisdiction under the Clean Water Act and to interpret “waters of the United States” in a way that avoids undermining the constitutional rights of property owners across the county.
Because fighting the frequent overreach of federal regulatory agencies and enforcing the Fifth Amendment’s prohibition on the taking of private property without just compensation is central to preserving the Constitution’s limits on federal power and its protection of individual liberty, the Committee for Justice, along with Conservatives for Property Rights, joined the Atlantic Legal Foundation in filing a Supreme Court amicus brief in support of Michael and Chantell Sackett. Our amicus brief urges the Court to keep consistent with the longstanding canon of Constitutional avoidance and interpret the Clean Water Act as it was written, to apply to navigable waterways and their adjacent wetlands only.
The Sacketts’ case will likely boil down to the Court choosing one of two tests recognized in Rapanos v. United States (2006). The first is the “continuous surface connection test,” endorsed by the plurality in Rapanos, and it’s a common sense, easy to administer principle: waters and wetlands fall under the act’s jurisdiction if connected to a relatively permanent surface flow of water. Anyone with a stake in a given property can probably tell what’s affected with the naked eye, at least for most of the year.
Contrast that to the “significant nexus” test, proposed by Justice Kennedy. Unlike the clear standard created by the four justices in Rapanos, this vague and broad test determines whether there’s a “significant nexus” between a waterway and a property by examining the totality of whether the land affects the “chemical, physical and biological integrity of other covered waters.” This is an incredibly broad definition, and Justice Alito noted in Sackett I (2012): “Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”
If that sounds like hyperbole, consider the case of the Sacketts themselves. For wanting to fill in a soggy hole with dirt from elsewhere on their property, the Sacketts are told they’d be “discharging” a “pollutant” into “the waters of the United States” on the basis that there’s a lake several lots away. This is a serious matter, filling in the hole without one of the EPA’s permits (which can cost hundreds of thousands of dollars), can trigger criminal as well as civil penalties and the EPA has threatened the Sacketts with fines of more than $40,000 per day they don’t comply, and tried to argue (unsuccessfully) that this decision was immune to judicial review.
Extending this enforcement approach to vast swathes of property arbitrarily defined as “wetlands” would constitute a massive regulatory taking, with massive costs all over the country for anyone unfortunate enough to live near water and catch the eye of the EPA. And thanks to the conflicting tests, the EPA’s application of the CWA is arbitrary and inconsistent.
This is a problem that was repeatedly underscored by the questions of the Justices during oral argument. In one particular exchange, Justice Gorsuch pinpointed a critical weakness in the government’s interpretation of the statute: the almost total absence of a limiting principle. Justice Gorsuch wanted to know how in the world a landowner could be sure they weren’t covered, and pressed counsel to explain how far was too far to be “adjacent.”
JUSTICE GORSUCH: Could it be two miles?
MR. 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?
MR. FLETCHER: Again, I see where this is headed.
MR. FLETCHER: But, again, I think --
JUSTICE GORSUCH: So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?
Clearly, the significant nexus test has created a lot of confusion, as seen with the government’s “I know it when I see it” approach to determining wetlands jurisdiction. But when statutes are vague or ambiguous, the law should be interpreted in a manner that avoids unconstitutional outcomes.
Insofar as the meaning of “the waters of the United States” is ambiguous, the Court should apply the canon of constitutional avoidance. The EPA’s authority to regulate wetlands must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. Consistent with the canon of constitutional avoidance, the Supreme Court must reject the significant nexus test.
Roman Goerss is a senior legal fellow at the Committee for Justice, a nonprofit legal and policy organization that advocates for the rule of law and constitutionally limited government and is a leading voice on judicial nominations.