On Monday, January 24, 2022, the Supreme Court of the United States announced that it will clarify the governing standard for determining whether wetlands are “Waters of the United States” under the Clean Water Act in Sackett v. EPA. The court granted certiorari, limited to the following question: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. §1362(7).”
The Sackett case involves an Idaho couple who purchased a plot of land near Idaho’s Priest Lake in 2004, on which they sought to build a home. However, when they began to backfill the lot with sand and gravel to begin the construction process, they received an administrative compliance order from the Environmental Protection Agency, stating that the property contained wetlands which were protected under the Clean Water Act, and as such the Sacketts had to remove the fill and restore the property to its natural state. The Sacketts sued the EPA in 2008, seeking declaratory and injunctive relief, arguing that the EPA’s jurisdiction under the CWA did not extend to their property.
The EPA moved to dismiss the Sacketts’ suit, arguing that the compliance order was not “final agency action … subject to judicial review …” The district court granted the motion, and the Ninth Circuit Court of Appeals affirmed. However, the Supreme Court granted certiorari and reversed, holding that the compliance order did constitute final agency action subject to judicial review. As such, this is the Sacketts’ second time before the court in this case.
The Sacketts amended the complaint on remand to challenge the compliance order and, in March 2019, the district court granted summary judgment to the EPA, finding that its issuance of the compliance order was not arbitrary or capricious. The Sacketts appealed. During the pendency of the appeal, the EPA withdrew its compliance order and advised the Sacketts that it decided not to enforce same. Then, the EPA moved to dismiss the appeal as moot.
In August 2021, the Ninth Circuit issued its decision on the Sacketts’ appeal and the EPA’s motion to dismiss same as moot. The court disposed of the mootness argument first, holding that the issue was not moot, as “the central dispute in this case remains unresolved. The Sacketts are still, 13 years later, seeking an answer to whether EPA can prevent them from developing their property.”
Moving to the merits of the case—whether the EPA was entitled to summary judgment—the court noted that the Sacketts’ argument was premised on Justice Scalia’s plurality opinion in Rapanos v. United States. That is, the Sacketts argued that Justice Scalia’s plurality opinion provided the governing standard for determining CWA jurisdiction over wetlands. The plurality opinion concluded that “‘waters of the United States’ extended only to ‘relatively permanent, standing or flowing bodies of water,’ and to wetlands with a ‘continuous surface connection’ to such permanent waters.” 547 U.S. 715, 757 (2006). Given this, the Sacketts argued that “because their property does not contain wetlands with a continuous surface connection to any ‘waters of United States,’” the EPA’s assertion of jurisdiction over their property ran afoul of the CWA.
The Ninth Circuit ultimately held that the Sacketts’ arguments failed, and instead held, as it did in Northern California River Watch v. City of Healdsburg in 2007, that Justice Kennedy’s concurrence in Rapanos, which adopted the “significant nexus” test, was controlling. Justice Kennedy’s “significant nexus” test held that “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense. Id. at 779. This inquiry turns on whether the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Id. at 780.
In applying Justice Kennedy’s “significant nexus” test to the Sacketts’ case, the court found that the wetlands on their lot were adjacent to an unnamed tributary to a creek, thirty feet away, which eventually flowed into Priest Lake, which is a traditional navigable water. Additionally, the court agreed with the EPA’s finding that the wetlands significantly affected the integrity of Priest Lake, given that water from the wetlands make it into the lake and provide “important ecological and water quality benefits.” As such, the court found that the EPA had “reasonably determined that the Sacketts’ property contain[ed] wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA …”
Next term, the Supreme Court will determine whether Justice Kennedy’s “significant nexus” test or Justice Scalia’s plurality opinion in Rapanos provide the proper test to decide whether wetlands are “waters of the United States” for purposes of the Clean Water Act. This should be a welcome decision in that it will settle a current circuit split on the standard which followed Rapanos, and it notably comes just months after the EPA announced in November 2021 its proposed rule to revise the definition of “waters of the United States” protected by the CWA.