PODCASTEnvironmentally Speaking EP 86: Defining ‘WATERS OF THE UNITED STATES,’ A Supreme Court Decision

July 6, 20230

Transcript: Defining ‘WATERS OF THE UNITED STATES,’ A Supreme Court Decision

CLARICE:  Good morning, everybody.  And welcome to this week’s episode of Environmentally Speaking.MARISA:  Hi, everybody.  I’m Marisa Desautel an environmental attorney.

CLARICE:  And I’m Clarice, coming in usually with questions, topics, and things to talk about today, but today’s topic came from another attorney, maybe a listener, maybe not.

MARISA:  Yeah.  I’m not sure whether this attorney is a listener, but I had an e-mail exchange this week about a fairly new United States Supreme Court case.  And this attorney e-mailed me asking whether I had any insight into or information about how the Rhode Island Department of Environmental Management was interpreting this new case law from the United States Supreme Court.  So I thought it was an interesting topic to talk about because the bar in Rhode Island is curious about how and whether this decision is going to impact their clients, their practice, and any of the programs in Rhode Island.  And of course it’s a United States Supreme Court decision, so if it does have an impact on Rhode Island it would have impacts on the rest of the states in the country, as well.

CLARICE:  Yeah.  I think it’s worth repeating.  Earlier you said that this was a possibly dry topic which I think is a great pun considering we’re going to be talking about wetlands.

MARISA:  Yes.  It’s a dry wetland issue.  The name of the case is Sackett versus the Environmental Protection Agency.  And as I said already, it’s a United States Supreme Court decision, so there are no appeals left.  This is what’s now considered the law of the land, came out in May of this year, May 25th the decision was issued and it is yet to be seen how federal government will move forward under this new decision.  And then it usually takes a while for any kind of policy changes to make their way from the federal government down to state governments.  We’ll be waiting, I think, a little bit to see what the fallout from this case will be.

CLARICE:  I think so.  I mean, it’s only two months old.

[0:03:02] MARISA:  Yeah.

CLARICE:  Or not even, no.  It’s June.  Yeah.  It’s only a month old.

MARISA:  Oh, yeah.  Duh.  I was thinking it was July.

CLARICE:  Yeah.  We’re ready for summer.  We’re done.

MARISA:  Yeah.  We’re ready.  You’re right.

CLARICE:  So I read this case last night and from my understanding — and hop in, correct me — it looks like Sackett the Plaintiffs in this case originally had a plan and the intent to backfill some wetlands on their property.  And it looks like the — from my understanding the EPA has stepped in and said, that’s not allowed, you can’t do that.  From what I saw there was a potential hefty fine attached, up to $40,000 a day.

MARISA:  A day, yeah.

CLARICE:  That’s insane.

MARISA:  Yeah.

CLARICE:  Back when I was in college that was tuition.  But, you know —

MARISA:  Yeah.  Yeah.  It’s a lot of money.

CLARICE:  I mean, and now this case is now in front of the Supreme Court with the big overarching question of when does property move from waters to wetland to dry land?  Is that the travel of it?  Or when does it go from being a body of water to a wetland because there was a big part of the discussion in the opinion of defining different waters.

MARISA:  Yeah.

CLARICE:  And I’m not quite sure how that piece circles back to the Sacketts in their wetlands.  And I’m sure they’re not sitting in what I imagine is a swampy yard saying, I know this isn’t a lake.  Help me out.  What does that look like?

MARISA:  Okay.  The Supreme Court decisions, I’ve found, start usually — the very first sentence of the decision is usually pretty clever, in my opinion, and they try to capture the essence of what they’re going to be discussing in that first sentence, so I think I’m just going to read the first sentence.  Justice Alito delivered the decision of the court which means he authored the text of the decision.  Each of the Supreme Court justices take turns authoring decisions.  So in this case Justice Alito starts the opinion by saying, this case concerns a nagging question about the outer reaches of the Clean Water Act, the principal federal law regulating water pollution in the United States.  Does that answer your question at all?

[0:06:08] CLARICE:  That helps a lot.  We could have cut out a lot of middle paragraphs.

MARISA:  Yeah.  Right.  Just give us the first sentence and then the conclusion and let us go on our way.  Don’t bore us.  Give us the chorus.

CLARICE:  No disrespect to Alito, but it feels like this could have been a lot faster.

MARISA:  Yeah.  The decision goes on to say that the federal Clean Water Act has been very successful in what its initial intention was when it was enacted in 1972, but there has been a nuanced question that was formulated over time as a result of human activity, government putting together regulations, deciding policy, people appealing decisions and the courts rendering decisions on activity.  And so since 1972 we’ve got this issue that has been kind of batted around.  For some reason I’m thinking about a cat with a ball of yarn, kind of batted around through the court system about what the outer jurisdictional boundaries are of the Clean Water Act, specifically how federal government and the courts have regarded and whittled down and answered the question, what is a water of the United States.

And the reason that particular question is so important is because the Clean Water Act was only meant to apply to a, quote, water of the United States.  So what does that actually mean?  Is it meant to cover someone’s backyard that somehow — or excuse me — sometimes gets some stormwater that pools there after a storm?  Does it cover mudflats, sandflats?  Justice Alito says, does it cover prairie potholes, ditches, swimming pools?  What is the outward limit of the definition of that phrase, the waters of the United States?  That’s what this case is all about.

[0:08:53] CLARICE:  So how far can a Clean Water Act go?

MARISA:  Yeah.  Exactly.  When I was in law school a bazillion years ago, the case that we talked about quite a bit had to do with the federal government through the EPA deciding that they were going to regulate bodies of water that were not subject to constant inundation.  They were looking at bodies of water that were only wet at certain times of the year, either in the spring when there generally is more water or, you know, after a heavy rainfall, so that was the law of the land.

The federal government said, we’re going to take jurisdiction over bodies of water that are not consistently wet.  And I always thought that that made a lot of sense because — I’m looking for the name of the case as I’m scrolling through the opinion here.  But that made a lot of sense to me because there are certain bodies of water that are used by various species depending on the time of year, so it made sense to me that you’d want the federal government to try to protect those areas because they are important to our — the species that live on the planet.  Questions?

CLARICE:  Yeah.  So further down in the opinion they talk about kind of the mechanics of how we put this into practice.  And at one point I thought it was really interesting that they said, you know, do we need some sort of local agent to go out and actually — do we need to create a standard for what a body of water is in terms of can the Clean Water Act reach it.  And then do we need to have a local agent now go out and look at it and make a determination of, yes, it fits under the act, no, it doesn’t.

MARISA:  Yeah.

CLARICE:  So, you know, there’s this idea that they are making a decision of what falls under and what doesn’t and that’s — you know, that’s all well and good, but what does it look like in practice?  Do agents now need to — who are these agents?  Is that actually what’s going to be happening?  How do we now put this word into practice?

[0:11:44] MARISA:  Well, so the case that I was talking about — it’s a good question and it’s really the heart of what the court discusses in this decision.  But the case that I was thinking about is — everyone calls it SWANCC, s-w-a-n-c-c is the short name of that case, but the full name is Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers.  That case came out in 2001 right before I started law school and it was important because the court talked about how the federal government had been using a — bear with me here.  We’re going to go down a little bit of a rabbit hole.

They were using a migratory bird rule to say that these particular bodies of water are or would be used as a habitat by migratory birds or endangered species and so the Army Corps said, we’re going to assert jurisdiction over bodies of water that are used by these migratory birds.  And in 2001 the U.S. Supreme Court came in and said, whoa, whoa, wait a minute, this is getting a little out of hand, you can’t assert jurisdiction over isolated ponds just because there’s an ecological interest here that you think gives you jurisdiction.

We are going to decline to allow the Army Corps of Engineers to assert jurisdiction over these bodies of water that are not — we don’t think they’re waters of the United States.  And the court in that case also talked about how a water of the United States has to be used for interstate commerce and it has to be a navigable waterway.  It can’t be a ditch on the side of the road.

CLARICE:  And that’s the definition that was promoted to me when I was in law school.

MARISA:  Yeah.  That was a big case.

CLARICE:  I always attached waterway or the traditional definition of a waterway with commerce, so this migratory definition was lost or kind of undertaught by the time I went to school.

MARISA:  Right.  Yeah.  Yeah.  As a result of that case that I’m calling SWANCC, the Army Corps of Engineers said, okay, well, we’ve got this decision in 2001 from the Supreme Court and we’re going to tell our staff as a policy determination that the court’s holding in that case is limited to waters that are non-navigable and isolated, but field staff should still go out and exercise jurisdiction under the Clean Water Act to the full extent for any waters that don’t meet that small definition.  So the agencies were trying to retain as much jurisdiction as possible in the face of that decision from SWANCC.

Then as a result of that policy another set of cases ended up being decided including a case called United States versus Deaton and Rapanos versus the United States.  The Rapanos case was a big deal.  That also talked about how the Clean Water Act should apply to wetlands near ditches and drains.  The issue in that case was that these ditches and drains eventually emptied into navigable waters and so the federal government said, well, we think that we’ve got jurisdiction under the Clean Water Act for these types of bodies of water.

The ultimate decision from Rapanos was that — it was a divided court, but ultimately the decision was that there has to be something called a significant nexus between the wetland and the navigable water and that nexus could exist where the wetland significantly affects the chemical, physical, and biological integrity of those waters.  So we’re getting more nuanced decisions where the U.S. Supreme Court is kind of — not following what the federal government is doing but looking at these case by case water bodies and further defining what the federal government’s jurisdiction is over a wetland.  So that’s the backdrop.

Now we’ve got this case, Sackett versus EPA.  Again, just came out a month ago so very recent.  And the court is attempting here to further define what the federal government’s authority is under the Clean Water Act in the context of what the Environmental Protection Agency did.  These cases are all dealing with different branches of government.  You’ve got the EPA in this case.  You have the Army Corps of Engineers in other cases and then United States which steps in.  The Department of Justice will step in to defend federal agencies in certain cases.  So you’ve got a line of case law coming from a few different agencies and their policy decisions.  So here we are, 2023.  What’s the new law of the land?  I’m asking you.

[0:17:57] CLARICE:  Oh, shoot.  I don’t know.

MARISA:  Yeah.

CLARICE:  After reading it I felt if somebody asked me like you’re asking me — if I had to explain this to a potential client in an advisory position I wasn’t quite sure what practical steps to tell them.  At the end of this I left with a lot more questions than I did — here’s what you should do, here’s what you shouldn’t do, this is what it’s telling us in terms of behavior and action.  I left with more questions than answers.  You got to step in.

MARISA:  Okay.

CLARICE:  You’ve got more history.

MARISA:  Here’s the quote from the summary of this case.  The court is saying to assert jurisdiction over an adjacent wetland under the Clean Water Act a party much establish first that the adjacent body of water constitutes waters of the United States, i.e., a relatively permanent body of water connected to traditional interstate navigable waters.  And second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.  Huh?  Does that clear things up for you?

CLARICE:  No.  No.  This goes back to my question.  I know the Sacketts weren’t sitting in their yard going, I know this isn’t the ocean, so why is the court looking at us saying where does the wetland stop and the water begin.  I feel like a person could stand there and say, well, I know this is where the water stops and the wetland begins, but what does that look like in practice?  What is that definition?

MARISA:  Yeah.  Yeah.

CLARICE:  Is your definition different than mine?  Most likely yes because you’ve got years of science and exposure to this and I’m an indoor cat.  I don’t know.

MARISA:  Yeah.  Yeah.  To me the holding here is very, number one, fact specific and, number two, is going to require the application of expertise because there is also discussion in this case about how the adjacent wetland has to connect to a navigable water of the state through surface water means and not groundwater means.


MARISA:  I don’t agree with that because as a scientist water is fluid.  Water has properties and ways of acting and interacting not only at the surface but through groundwater conveyance, stuff that you can’t see.  It’s underground, so why are we just saying it’s got to be a surface water connection?

[0:21:20] CLARICE:  And doesn’t the Clean Water Act have language talking about groundwater pollutants and protections and things that should be done for that?

MARISA:  Uh-huh.

CLARICE:  So I think it’s interesting that the Clean Water Act has language discussing that and yet we’re pulling back as if it doesn’t.

MARISA:  Yeah.  It looked to me like the Supreme Court was really trying to come up with a bright-line rule that is less murky than these line of cases have been in the past.  And if you say it’s got to be a surface water connection, a continuous surface connection so that there’s no break in the chain between this body of water and that body of water you have to be able to look at it and say, oh, okay, the connection doesn’t end.

CLARICE:  Uh-huh.

MARISA:  That definition has its own issues because what do you deal with perennial-type bodies of water or areas subject to storm flowage that are connected only when certain conditions are in place like it’s the springtime and everything’s wet, or you get a storm and everything’s inundated.  So I don’t know that this clears up the issue.


MARISA:  So another quote here that I’m citing because I think it supports what I just said is that the court comes up with this summary language and says in sum, the Clean Water Act extends to only wetlands that are, as a practical matter, indistinguishable from waters of the United States.  What?  Okay.  As a practical matter what does that mean?

CLARICE:  I don’t —

MARISA:  An indistinguishable — well, what does that mean?  To an expert indistinguishable means something a lot different than a lay person.

CLARICE:  Yeah.  This goes back to what I was saying.  You and I could go out to the same piece of land and make two completely different determinations —

MARISA:  Yeah.

CLARICE:  — because you’re going to look for a lot more details than I would know to.

MARISA:  Yeah.

CLARICE:  It almost sounds like cases moving forward are going to need the help of experts.

MARISA:  Yeah.

CLARICE:  I think that’s the ruling.  The ruling is you need an expert.

[0:24:21] MARISA:  Yeah.  Yeah.  I think there’s going to be more case law dealing with the evidence that federal government puts forward to try to satisfy this definition.

CLARICE:  And, I mean, stop me if I’m misunderstanding it, but I’ve always had the idea that the Supreme Court doesn’t necessarily sit as your traditional fact finders.  I mean, sure they review and go back through facts, but they’re not there sort of as the first wave to say, I’m here to sift through the evidence and determine what is true and what is not.

MARISA:  Yeah.  That’s right.  That’s right.

CLARICE:  By the time it gets up to them, that’s already done.

MARISA:  Yeah.  And the U.S. Supreme Court does not have to take any case that it doesn’t want to, so I think you’ll see a lot of litigation in the lower courts dealing with how to interpret what the U.S. Supreme Court is saying in this case.

CLARICE:  It feels like there’s now a heavy burden for a lot of evidence for a lot of fact finding for a lot of information-heavy versus argument and reason-heavy cases coming from a court that is not traditionally in a place to find facts.

MARISA:  Yeah.

CLARICE:  Shots have been fired.

MARISA:  Yeah.  Well, so the court’s decision does mirror the previous case that we touched on, the Rapanos case, so, you know, it’s not so crazy that they’re coming up with a brand new rule, but the Rapanos case clearly had some issues with it because since that time we’re still dealing with the federal government trying to figure out how to operate under the Clean Water Act and the Rapanos decision and there’s still confusion.

So the attorney that was chatting with me about this case was curious as to how Rhode Island might operate under what the court is saying here, but I think in Rhode Island it’s a little different because the authority for DEMs wetlands enforcement program comes from the Rhode Island Freshwater Wetlands Act, so we’re not necessarily operating under the Clean Water Act the way that federal government is in this case.  Sorry for sniffling.  My allergies are killing me.  We should probably wrap it up.  My sniffling is not going to get any better.

[0:27:35] CLARICE:  So it sounds like ultimately this is going to have to come down to practice will show us what exactly — how helpful this is, what and where the flaws are and what needs to be — you know, what, if anything, needs to be edited and it will go from there.

MARISA:  Yeah.  Yeah.

CLARICE:  Something to look out for.  But I also don’t see that coming any time soon.

MARISA:  No.  It’s going to take a while.

CLARICE:  It takes a while for any changes to happen.  I mean, it started as — it was promised to be a dry topic, but then it turned murky.

MARISA:  Yes.  Dry and murky.

CLARICE:  Well, if you have any thoughts on it, if you have any comments, any reactions, let us know.  You can reach out to us on the socials.  We’re at Desautel Browning Law on Instagram, Facebook, Twitter.  You can watch videos on YouTube.  You can send us an e-mail at Help&DesautelESQ.com.  And take your allergy meds.

MARISA:  I did.  They’re not touching it.

CLARICE:  It is brutal.

MARISA:  It’s rough this year.  All right.  Thanks, everyone.


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