On January 24, 2022, the United States Supreme Court granted an appeal to reconsider the extent of federal Clean Water Act (CWA) jurisdiction involving wetlands on a couple’s property in Idaho. The appellants (the Sacketts) are no strangers to the Supreme Court: in 2012, they won a landmark procedural case when the Court held that they could appeal an EPA unilateral administrative order before EPA actually tried to enforce it (Sacket I). The underlying enforcement case by EPA has been percolating since then, culminating in a Ninth Circuit Court of Appeal’s holding that the wetlands on their property are federally regulated. The Sackett’s appeal of this decision to the Supreme Court will turn on “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the [CWA], 33 U.S.C. § 1362(7)” (Sacket II).
Most regulatory and permitting programs established through the CWA turn in part on whether the activity in question involves “navigable waters,” with that term being defined by statute for several key programs merely as “waters of the United States” (WOTUS). The meaning of WOTUS has therefore been left by Congress to the U.S. Army Corps of Engineers and EPA to define by regulation. The WOTUS regulatory definition is foundational to the reach of CWA regulatory and permitting obligations for discharges of pollutants and dredge and fill material, among others. However, that definition and interpretations of it have been in legal flux over the years, leading to uncertainty for regulated parties and other stakeholders.
Hardly helping in this regard was the Supreme Court’s 2006 fractured decision in Rapanos v. United States construing the meaning of WOTUS based on its statutory context and Supreme Court precedent about the scope of WOTUS. The Rapanos decision in turn has led to splintered lines of cases in the federal district and appellate courts based on whether they chose to follow either the Rapanos plurality opinion by Justice Scalia or the concurring opinion by Justice Kennedy. The different opinions in Rapanos and the resulting different lines of cases have also greatly affected how EPA and the Corps have interpreted and redefined WOTUS several times over since Rapanos, resulting in further litigation and perpetuating uncertainty as to where federally regulated waters begin and end.
In the Sackett’s case, this story has played out (again) in the Ninth Circuit, which held that EPA acted properly in applying the generally broader “significant nexus” test from Justice Kennedy’s concurring opinion in Rapanos rather than the generally narrower “relatively permanent waters” test from Justice Scalia’s plurality opinion. With the Sackett’s appeal of the Ninth Circuit’s decision having been granted, the Supreme Court as currently constituted would appear well-positioned to resolve at least some aspects of the conflicting opinions of the Rapanos decision and, in turn, to offer greater certainty as to the scope of WOTUS. As noted above, though, the issue on appeal has been narrowly framed by the Court to whether “wetlands” are regulated WOTUS. In this light, it seems that the Court will not address – at least not directly – the degree to which tributaries, ponds and other forms of water bodies are jurisdictional WOTUS.
Another pot cooking on the WOTUS stove is the new definition of WOTUS proposed by the Corps and EPA on December 7, 2021 for public comment. (See a related article in the previous issue of our E&NR Practice newsletter.) The Biden Administration EPA may seek to promulgate the new definition as a final rule before the Supreme Court issues its opinion in the Sackett II appeal later this year, with the hope that doing so will render the appeal moot. However, the issues of underlying statutory authority as to which wetlands should be regulated as WOTUS may prove substantial and durable enough to allow the Court to carry on with rendering a decision despite any new rulemaking on the WOTUS definition.
The brewing Sackett II appeal should be monitored closely, along with the simmering WOTUS definition rulemaking. One hopes that the boiled-over mess from the Rapanos decision can be cleaned up when both are done.
Sackett v. EPA, 142 S.Ct. 896 (January 22, 2022) (cert. granted), available here;
Rapanos v. United States 547 U.S. 715, 126 S. Ct. 2208 (2006).