Page 5 - JulyAugust23 Report

Cover Article
Supreme Court Halts Expansive Test for Wetlands
In its fourth opportunity since 2001 to define what it means to be “waters of the United States” (WOTUS) under the Clean Water Act (CWA), on May 25, 2023, the U.S. Supreme Court finally breathed some measure of clarity into the definition. In an opinion authored by Justice Alito (Sackett v. Environmental Protection Agency, 566 U.S. 120 (2023)), in which the other 8 justices either joined or concurred, the Court rejected the U.S. Environmental Protection Agency and Army Corps of Engineers’ (the “Agencies”) use of a vague and subjective “significant nexus test” (SNT) to assert jurisdiction over a wetland the Corps had found to be “adjacent” to Priest Lake in Idaho, but which was in fact separated from the lake by a large roadway, a manmade ditch, and a substantial segment of a non-navigable, unnamed tributary, and also lacked any defined surface or subsurface connection with the lake.
In its decision, the Court concluded that the SNT used to define what is a jurisdictional “adjacent” wetland is (1) inconsis- tent with the text of the CWA, both as written and as interpreted in prior decisions of the Court, and (2) so vague and subjective that it fails to provide fair notice to the regulated community of its obligations, while imposing potentially severe civil and crim- inal penalties on those who guess wrong. While unanimous in rejecting further use of the SNT for wetlands, the Court never-
theless was divided on the proper standard to be applied when determining when a wetland is sufficiently “adjacent” to a WOTUS to itself be a jurisdictional WOTUS:
jurisdictional.
Stephen N. Haughey Christina Wieg
1.Justices Alito, Roberts and Barrett would require that there be a continuous surface connection between the wetland and the WOTUS for the wetland to be
2.Justices Thomas and Gorsuch supported the continuous surface connection requirement, thus making a majority in support of this requirement, but they wrote separately
to express their view that the term “navigable” in the CWA is not being properly followed, and they would define all WOTUS more limitedly as “waters within Congress’ traditional authority over the interstate channels of commerce.”
3.Justices Kavanaugh, Kagan, Sotomayor and Jackson wrote separately to opine that requiring a continuous surface connection between a wetland and a WOTUS
improperly narrows the statutory term “adjacent” into the term “adjoining,” and they would rely instead on the “ordinary meaning” of the word “adjacent.”
THE REPORT | July/August 2023 | CincyBar.org 5