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:
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.
