The Supreme Court heard arguments in the long-running fight over the WOTUS rule and when wetlands are “Waters of the U.S.” under the Clean Water Act and require EPA permits.
It all came down to whether the term “adjacent” in law means a wetland that abuts a navigable water, which the plaintiffs argue can be eyeballed—or simply one nearby or with a significant subsurface connection—as the government argued.
But how nearby? This exchange between Justice Neil Gorsuch and the government’s attorney Brian Fletcher; “It couldn’t be 3-miles? Fletcher: “I don’t think it could. Gorsuch: “Could it be 2-miles?” Fletcher: “That, again, when we start to talk about miles, that seems too far to be adjacent.” Gorsuch: “1-mile?” Fletcher: “Again, I see where this is headed, but again…” (laughter).”
Highlighting the confusion over Congress’ intent and whether the High Court should revisit an earlier test by a court plurality to use only surface water connections as the standard.
Attorney Damien Schiff for the Sacketts, fighting EPA for years to build a home near a lake in Idaho, argued for that simpler surface test. Schiff; “It’s an easy to administer test. Ordinary citizens can use their own eyes to reliably determine whether their land is regulated.”
While Fletcher for the government claimed Congress intended certain ‘carveouts’. Fletcher; “We’re going to carve out certain activities like farming and ranching…we’re going to transfer permitting authority over some wetlands to the states.”
Liberal Justices, including newest member Ketanji Brown-Jackson, seemed to side with the government’s interest in protecting the environment, conservatives with protecting landowners, uncertain if they need a permit—Justice Gorsuch; “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison, supposed to know.”
Leaving the nation’s highest court and the Biden EPA—revisiting Trump-era WOTUS reforms—to again decide how expansive EPA power is in regulating wetlands.