Yesterday the Supreme Court opened October Term 2022 with oral argument in Sackett v. Environmental Protection Agency, 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). In previous posts I discussed the issues in the case, the cert grant, and the decision below.
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 United States v. Riverside Bayview Homes, perhaps the high-water mark of Court acquiescence to broad assertions of federal regulatory power under the CWA. Accordingly, the justices considered whether "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.
