In January 2022, the United States Supreme Court announced that it would once again hear arguments in the long-running case of Sackett v. EPA. This will be the second time that the Supreme Court has agreed to take up the Sackett case since it was first filed in federal court in 2008. The underlying case involves a dispute concerning a wetland located on the plaintiffs’ property, and whether it falls under the jurisdiction of the Clean Water Act (“CWA”). A ruling from the Supreme Court could impact how wetlands are treated under the CWA.

Background

The controversy at the heart of this case occurred in 2007 when the plaintiffs, Michael and Chantell Sackett, began to fill in a wetland located on their property near Priest Lake, Idaho in order to start constructing a home. Shortly afterward, the Environmental Protection Agency (“EPA”) intervened. According to EPA, the wetland that the Sacketts were filling in was a “water of the United States” and therefore fell under CWA jurisdiction. Because EPA identified the wetland as a WOTUS, the Sacketts were required to obtain a CWA permit before they could continue their fill activities. The Sacketts disputed EPA’s claim and ultimately filed suit.

WOTUS & the CWA

The CWA is the primary federal statute regulating water pollution in the United States. It functions in part by requiring parties to obtain a CWA permit prior to discharging pollutants into any “navigable waters.” The Act goes on to define navigable waters as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The term “waters of the United States,” often shortened to “WOTUS” is central to the CWA because it determines which waters fall under the Act’s jurisdiction. However, Congress did not define the term when the CWA was first passed, and instead left it up to EPA to define in the Act’s implementing regulations. For decades, EPA has grappled with how to appropriately define WOTUS according to statutory authority. At the time the Sacketts began construction on their property in Idaho, the EPA was defining WOTUS according to regulations passed in the 1980s. Under those regulations, wetlands that were adjacent to other waters identified as WOTUS were themselves WOTUS and therefore fell under the jurisdiction of the CWA.

In 2006 the Supreme Court released the landmark decision Rapanos v. U.S., 547 U.S. 715 (2006) concerning the regulation of wetlands under the CWA. Prior to Rapanos, the Supreme Court had only addressed wetland jurisdiction under the CWA once before in U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) when the Court concluded that EPA had the authority to regulate wetlands that were “adjacent” to navigable waters. At question in Rapanos was whether CWA jurisdiction extended to nonnavigable wetlands that did not directly “abut” a navigable water. The case did not result in a majority decision from the court. Instead, it produced a plurality opinion authored by Justice Scalia and an opinion by Justice Kennedy writing for himself. The plurality opinion concluded that a wetland should only be considered a WOTUS if it had a “continuous surface connection” to another WOTUS. The opinion authored by Justice Kennedy suggested that the jurisdiction of each wetland should be determined on a case-by-case basis based on whether the wetland had a “significant nexus” to another WOTUS. According to Justice Kennedy, a significant nexus would exist if a wetland “significantly affect[ed] the chemical, physical, and biological integrity” of a WOTUS. Since the Rapanos decision was first issued, courts and EPA have struggled to determine which test to apply when determining whether a particular wetland is subject to CWA jurisdiction. So far, courts have tended to apply either Justice Kennedy’s significant nexus test on its own or in combination with the plurality’s test. EPA, on the other hand, has tended to follow the significant nexus test. To learn more about the 1980s WOTUS regulations and the Rapanos decision, click here.

Journey to the Supreme Court

In 2007, after EPA inspected the Sacketts property after being made aware of a potential CWA violation, the Agency issued an administrative compliance order formally concluding that the Sacketts’ property contained a wetland subject to CWA jurisdiction. According to EPA, the wetland located on the Sackett property was a WOTUS because it was part of a wetland system that drained into a tributary which fed nearby Priest Lake which has long been considered a WOTUS due to its use in interstate commerce. Although the wetland on the Sackett property did not share a surface connection with Priest Lake due to manmade barriers, EPA found that it nevertheless shared a significant nexus with the Lake that was sufficient to declare the wetland a WOTUS.

The Sacketts filed suit against EPA in 2008 challenging the conclusion of the administrative compliance order. According to the Sacketts, the wetland on their property was not a WOTUS because it does not share a continuous surface water connection with Priest Lake or any other navigable body of water. The Sacketts argue that EPA’s application of the significant nexus test was incorrect because it is the Rapanos plurality opinion that should govern CWA jurisdictional questions. In other words, the controversy at the heart of this case is which Rapanos opinion should control the jurisdiction of wetlands under the CWA – the plurality’s continuous surface water opinion, or Justice Kennedy’s significant nexus opinion.

However, before the courts were able to address that particular controversy, they first had to determine whether the Sacketts were able to challenge EPA’s administrative compliance order in a court of law. That question ultimately came before the Supreme Court which concluded that the order could be challenged. After reaching that decision, the Supreme Court sent the case back to the lower federal courts so that the question of wetland jurisdiction could be appropriately considered. Both the federal district court and the Ninth Circuit Court of Appeals concluded that the significant nexus test was the correct one to apply. Both courts upheld EPA’s finding that the wetland on the Sackett property was a WOTUS because it shared a significant nexus with Priest Lake. The Sacketts have appealed that finding the Supreme Court which has once again agreed to take up the case.

Question Before the Supreme Court

This time, the issue before the Supreme Court in Sackett v. EPA will involve the actual controversy at the heart of the case. The question presented to the Court in the plaintiffs’ brief is “should Rapanos be revisited to adopt the plurality’s test for wetlands jurisdiction under the [CWA]?”.

The Sacketts argue that the Court should formally endorse the plurality’s opinion as the correct way to determine CWA jurisdiction for wetlands for two main reasons. First, the Sacketts argue that the plurality opinion is the more constitutionally sound interpretation of the CWA. Traditionally, the term “navigable waters” has been defined to include those waters which are used in interstate commerce. The Sacketts claim that the plurality opinion is the more constitutionally correct approach because it would limit CWA jurisdiction to navigable waters and those wetlands that share a continuous surface connection with navigable waters. Limiting the term “navigable waters” in such a way would bring the CWA more in line with other laws and regulations that use the same term.

Second, the Sacketts claim that by adopting the plurality opinion, the Supreme Court the Court could resolve over a decade of confusion that followed the split decision in Rapanos. Since the Rapanos decision, courts, EPA, and ordinary citizens have been uncertain about how to properly determine the jurisdiction of a wetland. Courts have been split on whether to apply the significant nexus test or the continuous surface connection test, with some federal circuits opting to apply only the significant nexus test while others have chosen to apply the two in conjunction. EPA has also wrestled with how to best apply Rapanos. Since the decision was issued in 2006, EPA has adopted three different rulemakings aimed at defining WOTUS post-Rapanos. All of those rulemakings faced court challenges, and two were found to be unlawful. EPA is currently in the middle of another rulemaking effort to create a lasting WOTUS definition. Meanwhile, private citizens have also been confused over which jurisdictional test applies. According to the Sacketts, the absence of a clear jurisdictional rule has left private landowners such as themselves “feel their way” through CWA regulation on a case-by-case basis. For those reasons, the Sacketts urged the Supreme Court to adopt the Rapanos plurality opinion.

In its response brief, EPA argued that the Supreme Court should not revisit Rapanos both because the courts of appeals are not as confused as the Sacketts claim, and because EPA is currently in the middle of a rulemaking to revise the definition of WOTUS. According to EPA, since the Rapanos decision was issued, federal courts have consistently found that at least those wetlands that meet Justice Kennedy’s significant nexus test fall under CWA jurisdiction. Additionally, EPA claims that every definition of WOTUS that the Agency has adopted since the CWA was originally passed has included some wetlands that do not share a continuous surface connection with a navigable water. The wetland on the Sackett property was identified as a WOTUS because EPA found it was part of a larger wetland complex that drained into a tributary which flows into nearby Priest Lake. EPA argues that this satisfies the significant nexus test which has been applied by federal courts since the Rapanos decision was issued, as well as EPA’s authority to regulate wetlands “adjacent” to navigable waters which the Supreme Court identified in Riverside Bayview Homes.

Going Forward

It is currently unclear what impact the Supreme Court will have on the future of WOTUS by agreeing to take up the Sacketts’ case. The Court may choose to issue a broad decision regarding wetland jurisdiction under the CWA. If it does so, that decision would likely affect CWA regulation across the entire country as well as impact the WOTUS rulemaking currently being undertaken by EPA. However, it is also possible that the Supreme Court could choose to narrowly tailor its decision so that the outcome would only affect the particular wetlands located on the Sackett property.

The National Agricultural Law Center will continue to provide updates on this lawsuit and its impacts as it progresses.

To read the Sacketts’ brief to the Supreme Court, click here.

To read EPA’s response brief, click here.

To read the text of Rapanos, click here.

To read the text of Riverside Bayview Homes, click here.

To read the text of the CWA, click here.

For a full timeline of the definition of WOTUS, click here.

For more National Agricultural Law Center resources on the CWA, click here.