SCOTUS Takes a Closer Look at Wetlands and WOTUS

How is adjacency defined when it comes to navigable waters under the Clean Water Act? In Monday’s oral arguments at the Supreme Court, that was a question debated frequently between the justices to lawyer Damien Schiff. Here’s Schiff’s argument on behalf of the Sacketts. “Near adjacency itself cannot justify the agency’s statutory jurisdiction for a number of reasons. The text of the statute says if it’s not even a water, it can’t be regulated. The plain meaning of water, based on dictionary definitions, is streams, creeks and rivers, but not wetlands.” At issue is the standard for what wetlands are covered under the Clean Water Act. Schiff noted wetlands are regulated, but not all wetlands. There is a lack of clarity. In the second hour of oral arguments, Acting Solicitor General Brian Fletcher said a test is still needed to determine which additional waters are covered. Justices asked Fletcher how a reasonable person is supposed to know within a watershed whether or not their land is adjacent to Waters of the United States. A Supreme Court response to the case is expected by the end of the calendar year. Hear the story.