The Supreme Court heard oral argument in Sackett v. Environmental Protection Agency on October 3, 2022. Sackett involves property owners challenging an EPA compliance order determining that a property on which the Sacketts intended to build a home was a wetland as defined in the Clean Water Act (CWA). Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1079 (9th Cir. 2021), cert. granted in part sub nom. Sackett v. Env’t Prot. Agency, 211 L. Ed. 2d 604, 142 S. Ct. 896 (2022).
In United States v. Riverside Bayview Homes, Inc., the Supreme Court extended the definition of waters of the United States to include wetlands adjacent to traditional navigable bodies of water. 474 U.S. 121, 134 (1985). Much litigation has sought to determine whether wetlands should be included in the definition of waters of the United States.
The Sacketts’ lot lays a few hundred feet from a lake, a series of wetlands, and a row of houses. The trial court granted summary judgment to the EPA in 2019, and the Ninth Circuit Court of Appeals considered the Sacketts’ appeal based on the inclusion of their property in the CWA’s definition of “waters of the United States.”
The Sacketts argued on appeal that Justice Scalia’s plurality opinion in Rapanos v. United States controls when determining whether an adjacent wetland should be considered a water of the United States. 547 U.S. 715, 719 (2006). That test extends coverage of the CWA to “‘relatively permanent, standing or flowing bodies of water’ and to wetlands with a ‘continuous surface connection’” to such permanent waters. Sackett, 8 F.4th at 1088 (quoting Rapanos, 547 U.S. at 739,742).
The Ninth Circuit affirmed summary judgment in favor of the EPA, holding that Justice Kennedy’s concurring opinion in Rapanos, which created the “significant nexus” test, is the controlling law in the Ninth Circuit. Id. at 1091. The significant nexus test would extend coverage of the CWA to wetlands if they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Rapanos, 547 U.S. at 780 (Kennedy, J., concurring).
During oral argument, the Sacketts argued that a more stringent test should be used to designate a wetland as covered under the CWA, one which would require flow of water from the wetland into a traditionally navigable body of water. The test should allow an ordinary citizen to determine by sight whether a property is covered, the Sacketts’ attorney opined. On the other hand, the EPA argued, and some Justices seemed to agree, that the Court should not depart from the way the CWA has been enforced since it was enacted.
On December 30, 2022, the EPA and the Army Corps of Engineers revealed a prepublication version of a rule titled “Revised Definition of ‘Waters of the United States,’” to be published in the Federal Register. The proposed rule would extend the CWA to:
- “Traditional navigable waters, the territorial seas, and interstate waters,”
- Impoundments,
- Tributaries to any of the previous numbered waters, including to impoundments if the impoundments meet the relatively permanent or significant nexus standard,
- Wetlands adjacent to traditional navigable waters, the territorial seas, and interstate waters,
- Wetlands adjacent to and with a continuous surface connection to relatively permanent impoundments,
- Wetlands adjacent to relatively permanent tributaries,
- Wetlands adjacent to tributaries or impoundments that meet the significant nexus test, and
- “Intrastate lakes and ponds, streams, or wetlands” that meet either the relatively permanent or significant nexus standards.
In other words, the new rule promulgated by the EPA and ACE would use both Justice Scalia’s and Justice Kennedy’s standards expounded in Rapanos in conjunction to determine coverage of a wetland under the CWA. The rule would also codify some exclusions, such as prior converted cropland and waste treatment systems.
On December 30, 2022, the Acting Solicitor General submitted a letter to the Court, notifying the Court of the rule having been released. On January 9, 2023, Counsel for Respondents submitted a letter in reply, emphasizing an argument propounded by former Representative Robert Bauman (Maryland) during floor debate of the CWA in 1977. Representative Bauman argued that extending the definition of wetlands too far would harm many of his constituents.