The Supreme Court should restrict federal regulation of wetlands to marshy areas with a surface connection to a waterway — a dramatic reduction in coverage but a standard that would be easier to understand than the “significant nexus” test now in use, said a lawyer for the conservative Pacific Legal Foundation on Monday. Two justices said the court’s decision, in a case involving a home site in Idaho, could rewrite wetlands regulations nationwide.
While attorney Damien Schiff argued for a much narrower interpretation of clean water laws, the government said the question was more mundane; whether wetlands lose protection if they are separated by a road from other waters. “Overwhelming scientific evidence” says such barriers do not diminish the essential ecological role of wetlands, said Brian Fletcher, principal deputy solicitor general.
“When there’s no surface connection, there cannot be any plausible argument that the wetland itself is inseparably bound up with an abutting water,” said Schiff, contending his view aligned with the 1972 Clean Water Act. He refused to waver, although justices asked if a “middle position” was possible between his view and the longstanding federal policy that wetlands “adjacent” to navigable waters were protected by the clean water law.
“Your whole theory hangs together if adjacent means abutting,” said Justice Amy Comey Barrett. Justices Elena Kagan and Sonia Sotomayor said adjacent could mean nearby or neighboring rather than bordering.
Fletcher said Congress rejected proposals in 1977 that were similar to Schiff’s arguments when it included adjacent wetlands in water pollution laws. Justices said the government’s description of how applied the “significant nexus” test, created by the court in 2006, and considered adjacency seemed hazy. Where Schiff said lakes, streams and rivers were “waters of the United States and covered by the clean water law,” Fletcher said, “It’s also marshes and swamps.”
In 2006, Justice Anthony Kennedy, now retired, was the deciding vote in a wetlands case with the opinion that wetlands with a “significant nexus” to navigable waters were covered by the clean water law. Courts have generally followed that rule since, although executive branch efforts to implement it through regulations have been challenged repeatedly in court.
“This case is going to be important for wetlands throughout the country and we have to get it right,” said Justice Brett Kavanaugh during the hour-long arguments. Justice Samuel Alito said the case “may have an important nationwide effect.”
At issue in Monday’s arguments was whether the half-acre home site owned by Michael and Chantell Sackett, near Priest Lake in the northernmost portion of the Idaho panhandle, was subject to federal wetlands regulations. It was the second time the Sacketts, represented by the Pacific Legal Foundation, have been before the court. In 2012, the Supreme Court ruled that the Sacketts had the right to challenge the EPA’s determination that the lot included a wetland and they would need federal permits to build on it.
Schiff said there “is no surface connection from the Sacketts’ property to any plausible water.” Regulators said there was subsurface water flow that showed that part of the lot was a wetland with connections to the lake.
A transcript of the Supreme Court arguments is available here.