Sackett II Wetland Case Brewing Even As “Waters of the United States” Definition Simmers

By:?Henry R. "Speaker" Pollard, V

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.

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