Adjacent vs. Adjoining: An Iota Difference With Vast Consequences

Sackett v. Env't Prot. Agency, No. 21-454, 2023 WL 3632751 (U.S. May 25, 2023).

            This controversy between Michael and Chantell Sackett and the Environmental Protection Agency started shortly after the Sacketts purchased a piece of property near Priest Lake, Idaho in 2004. The case was previously reviewed by the Supreme Court in 2012[1] and remanded. Finally, more than another decade after that remand, the issue is finally resolved.

            What’s the issue? The primary contest in this matter is the meaning of the term “waters of the United States” as used in the Clean Water Act and whether the property on which the Sacketts added fill fell within the definition of “waters of the United States” and thus would require a permit from the Corps of Engineers.[2] Though previous panels of the Supreme Court have tackled the meaning of this legal term of art (See: United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 [1985]; Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 [2001], Rapanos v. United States, 547 U. S. 715 [2006]), what wetlands are included in the “waters of the United States” remained elusive.

            Justice Alito as author of the majority opinion in which Justices Roberts, Thomas, Gorsuch, and Barrett joined ultimately, held that wetlands within the purview of the CWA include only those areas which have a continuous surface connection with traditional navigable waters of the United States, that is, relatively permanent bodies of water connected to traditional interstate navigable waters as established in the seminal case of The Daniel Ball[3] and its progeny. The “wetlands” must be adjoining these navigable waters and not adjacent to those that support interstate or international commerce.

            Justice Thomas filed a concurring opinion joined by Justice Gorsuch. Justice Kagan filed an opinion concurring only in the judgment and was joined by Justices Sotomayor and Jackson. Justice Kavanaugh wrote an opinion concurring only in the judgment in which Justices Sotomayor, Kagan, and Jackson joined.

            The entire Court concurred in the judgment which reversed the Ninth Circuit’s opinion in favor of the EPA. All the justices agreed that the subject property was not within the purview of the CWA’s jurisdiction.

            Justices Kagan and Kavanaugh’s concurring opinions center on the language of the Act which defines “waters of the United States” to include all wetlands “adjacent” to other covered waters.[4] Adjacent is a broader word than adjoining and includes an area which is also nearby whereas adjoining requires a touching.[5] Justice Kavanaugh opined that the test adopted by the majority is far too narrow and will exclude wetlands previously held to be within the purview of the Act. “For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”[6]

            A more thorough analysis of the opinion will be forthcoming.

[1] Sackett v. E.P.A., 566 U.S. 120 (2012).

[2] The EPA cited the Sacketts for violating the Clean Water Act as the area was protected wetlands. The Agency threatened to fine the property owners $40,000 a day for failure to comply. See Sackett v. Env't Prot. Agency, No. 21-454, 2023 WL 3632751, at *6 (U.S. May 25, 2023).

[3] The Daniel Ball, 10 Wall. 557, 563 (1871).

[4] Citing 33 U. S. C. §§1362(7), 1344(g)(1).

[5] Sackett v. Env't Prot. Agency, No. 21-454, 2023 WL 3632751, at *29-32.

[6] Sackett v. Env't Prot. Agency, No. 21-454, 2023 WL 3632751, at *36 (U.S. May 25, 2023).