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<\/picture> <\/div>\nYesterday the Supreme Court opened October Term 2022 with oral argument in Sackett v. Environmental Protection Agency<\/em><\/a>, a case in which the Court is asked (once again) to clarify the scope of federal regulatory authority over wetlands under the Clean Water Act (CWA).\u00a0 In previous posts I discussed the issues in the case<\/a>, the cert grant<\/a>, and the decision below<\/a>.<\/p>\n If oral argument was any indication, the justices recognize the need for greater regulatory certainty, but also recognize the difficulty in drawing a clear line to demarcate where “waters of the United States” end and non-federal waters or lands begin. Much of the argument focused on precisely this question, causing the justices to explore the meaning of the word “adjacent,” as the Court previously upheld the EPA and Army Corps’ authority over wetlands adjacent to navigable waters in\u00a0United States v. Riverside Bayview Homes<\/em><\/a>, perhaps the high-water mark of Court acquiescence to broad assertions of federal regulatory power under the CWA. Accordingly, the justices considered\u00a0whether “adjacent wetlands” must be physically connected to navigable waters, must be neighboring to such waters, or must merely be nearby, and most seemed unconvinced with the answers they received from the advocates.<\/p>\n Over the course of the argument it became rather clear that a majority of the Court is unwilling to embrace Justice Kennedy’s “significant nexus” test for federal regulatory jurisdiction. This is significant because the federal government sought to defend this test, as opposed to the more expansive tests urged by the EPA, Army Corps, and Justice Department in prior CWA jurisdiction cases. It seems the “significant nexus” test is simply too malleable and uncertain to constrain federal regulatory authority and provide landowners with sufficient regulatory certainty.<\/p>\n While the justices seemed unlikely to reaffirm “significant nexus” as the relevant test, it was not clear many were sold on the petitioners’ proposed alternative, a variant of the test Justice Scalia proposed in his\u00a0Rapanos<\/em> plurality, which would generally require a continuous surface connection between wetlands-to-be-regulated and navigable waters. Chief Justice Roberts, in particular, seems surprised that the petitioners would advance a test that would effectively eliminate federal regulatory authority over wetlands with seasonal hydrological connections to navigable waters.<\/p>\n Perhaps recognizing an opportunity to forge a compromise, Justice Kagan (followed by Justice Sotomayor) asked whether there was an alternative formulation that could provide landowners with greater certainty without unduly constraining the federal government’s regulatory authority. Neither attorney before the Court offered such an alternative, but it may well be that the justices are looking for such an alternative. In this regard, it seems Justice Kagan was trying to replicate the\u00a0Court’s compromise decision in the Court’s last Clean Water Act case, County of Maui v. Hawai’i Wildlife Federation,<\/em> in which a compromise position captured a six-justice majority.<\/p>\n A few other tidbits:<\/p>\n Although this was the first case heard in this Supreme Court term, I doubt it will be the term’s first opinion. The justices have quite a bit to sort out, and this is unlikely to be a unanimous opinion.<\/p>\n The post The Sackett Oral Argument and the Problem of Defining "Waters of the United States"<\/a> appeared first on Reason.com<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" The justices wrestled with the problem of identifying a clear, coherent, and administrable definition to constrain federal regulatory jurisdiction under the Clean Water Act. …<\/p>\n","protected":false},"author":1,"featured_media":75240,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"tdm_status":"","tdm_grid_status":""},"categories":[19,9],"tags":[],"_links":{"self":[{"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/posts\/75239"}],"collection":[{"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/comments?post=75239"}],"version-history":[{"count":0,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/posts\/75239\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/media\/75240"}],"wp:attachment":[{"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/media?parent=75239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/categories?post=75239"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/3rdcitynews.com\/news\/wp-json\/wp\/v2\/tags?post=75239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n