Is Water Wet? The Supreme Court Investigates.

Reading the Supreme Court’s decision in Sackett v. EPAmight cause you to question your grasp of the English language. Wetlands are wet but are they water? What is water, anyway? Is it distinct from “waters,” plural? How about the word “adjacent” — does it mean “next to” or is it a nonsensical string of syllables signifying nothing?

Even attempting to explain the breakdown of the court’s decision, issued Thursday, requires small abuses of language. The ruling was “nominally unanimous” in that all the justices technically agreed the Environmental Protection Agency overstepped its jurisdiction when it dinged Michael and Chantell Sackett of Idaho in violation of the Clean Waters Act after they backfilled their property with dirt and rocks in preparation for construction. (The EPA claimed the Sackett’s land was protected wetland; in this specific case, the justices didn’t buy it). But the judges were far from unanimous in their reading of the law more broadly, with conservative Justice Brett Kavanaugh notably breaking from his ideological cohorts to issue a scathing clarifying opinion that was joined by the court’s four liberal judges.

Sackett v. EPA was probably always going to come down to semantics. The case marked the latest chapter in a decades-long legal debate over what counts as “waters” when it comes to the “waters of the United States,” which are federally protected by the 1972 Clear Water Act (CWA). In 1975, the Army Corps clarified that wetlands that are “adjacent to other navigable waters” should be considered a part of that protected body of water, and Congress codified this definition in 1977 when it made amendments to the CWA. This conventional interpretation of the words “waters” and “adjacent” had been the standard for 45 years and survived eight presidential administrations.

But hey, what is a word, really? Who decides what it means? Writing for the five other conservative justices, Samuel Alito proposed that wetlands might not be continuously wet enough to count as part of the larger protected whole:

The EPA argues that “waters” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands...’”

… which, yeah, of course. Any child can tell you that wetlands are wet and that the “wet” in question is caused by water, not hot lava or buttermilk. But lo! “[T]hat reading proves too much,” Alito said. “Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as ‘waters.’” It’s not even a creative false equivalency; besides, no one is trying to protect puddles.

Alito further fretted that by allowing for a definition of wetlands that includes, uh, wetlands, landowners could face “crushing” fines for “inadvertent violations” of the Clean Water Act “like moving dirt.” As Alito worried, “What are landowners to do if they want to build on their property?” (“Don’t pollute American waterways” seems like a pretty reasonable answer to that question!)

The real battle, though, boiled down to the word “adjacent.” In a 2006 Supreme Court opinion for Rapanos v. United States, the late conservative Antonin Scalia wrote for the plurality that wetlands only count as protected when they are “indistinguishable from waters of the United States.” (The court was divided and the case was ultimately sent back to the Sixth Circuit.)

By this unorthodox interpretation, the Clean Water Act would only protect “wetlands with a continuous surface connection” to protected waters, as Alito endorsed and wrote in the opinion released Thursday. What this means in real life is that when wetlands are separated from a larger body of protected water by something like a man-made levee or a naturally occurring berm or a sand dune — as many wetlands are — then the wetland in question is not indistinguishable from the larger body of water and thus no longer federally protected.

You might notice that “adjacent” and “continuous” are two different words. When Congress adopted the Army Corps’ language for protecting American waters from pollution, it did not protect wetlands that are “indistinguishable from other waters” but rather wetlands that are adjacent to other waters. As Kavanaugh pointed out:

The ordinary meaning of the term “adjacent” has not changed since Congress amended the Clean Water Act in 1977 to expressly cover “wetlands adjacent” to waters of the United States. Then as now, “adjacent” means lying near or close to, neighboring, or not widely separated. Indeed, the definitions of “adjacent” are notably explicit that two things need not touch each other in order to be adjacent.

Alito’s argument that adjacent means the same thing as adjoining goes “against all indications of ordinary meaning,” Kavanaugh added.

This isn’t just semantic nitpicking. The consequences of changing the definition of “adjacent” to something more like “an extension of” have huge ramifications for what the EPA can now protect. Because of that interpretation, millions of acres of wetlands theoretically just lost their federal protections. The Mississippi River, for example, uses levees to control flooding, but under Alito’s definition of “continuous surface connection,” such barriers would “seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side,” Kavanaugh wrote. Federal protection of the Chesapeake Bay might also be up in the air for similar reasons.

Justice Elena Kagan, in her own extra spicy opinion joined by the other court liberals, ripped into the conservative majority for its word games. “[T]he majority shelves the usual rules of interpretation — reading the text, determining what the words used there mean, and applying that ordinary understanding concurring in judgment even if it conflicts with judges’ policy preferences,” she slammed, then added for good measure: “One last time: ‘Adjacent’ means neighboring, whether or not touching ... That congressional judgment is as clear as clear can be — which is to say, as clear as language gets.”

Of course, the decision isn’t about clarity or standard definitions. It’s about muddying the waters. What, after all, do we now make of wetlands that have surface water levels that fluctuate due to tides or dry spells? What of manmade barriers that existed before their builders knew the structures would cut off a wetland from federal protection? What even counts as a “continuous surface connection” — does a ditch? A pipe? How do we make sense of naturally shifting landscapes like dunes that temporarily cut off wetlands, only to eventually melt away again due to erosion or winds?

The conservative justices are more interested in exploitable ambiguities than answers to these questions.