On January 24, 2022, the United States Supreme Court granted a petition for writ of certiorari seeking review of the Ninth Circuit’s decision affirming an Idaho Federal District Court decision that the U.S. Environmental Protection Agency (“EPA”) “reasonably determined” that a landowner’s property contained wetlands that shared a “significant nexus” with “waters of the United States.” The Supreme Court’s grant of certiorari was limited to “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).” This case represents the first time in more than 15 years that the Supreme Court has decided to wade into the muddy morass of what represents federal jurisdictional waters.
For the past 35 years, what constitutes a “water of the United States” has been the subject of ever-changing interpretation by the Supreme Court, various federal courts, and numerous EPA regulations. Since 2006, this jurisprudential swamp has been governed, in large part, by Justice Anthony Kennedy’s plurality opinion in Rapanos v. United States. Justice Kennedy’s concurring opinion concluded that a wetland fell within the scope of the Act’s jurisdiction if it bore a “significant nexus” with a traditional navigable-in-fact body of water.
Shortly after the Rapanos decision was issued, Mike and Chantell Sackett sought to develop their half-acre property in Priest Lake, Idaho. In connection with their building plans, they filled a portion of their lot. Several months later, EPA issued a compliance order that asserted the Sackett’s lot was a wetland and that they violated the Clean Water Act by filling it before first obtaining a permit. The Sacketts challenged EPA’s compliance order and sought a hearing before the agency; EPA refused to grant them a hearing and continued to contend that federal jurisdiction over their property existed. The Sacketts appealed the EPA’s refusal to grant them a hearing to the U.S. District Court for the District of Idaho. They lost there and before the Ninth Circuit. More than four years after EPA issued its compliance order, during 2012, the Supreme Court reversed, unanimously concluding that the EPA compliance order constituted final agency action and that the Sacketts were entitled to a hearing. The Supreme Court then remanded the case to the District Court for further proceedings. Those proceedings continued for another seven years.
During March 2019, the District of Idaho judge granted summary judgment in favor of EPA, concluding that its amended compliance order was neither arbitrary nor capricious. The Sacketts appealed and lost before the Ninth Circuit. Now, 15 years after they purchased their property, the Sacketts are heading back to the Supreme Court. This time, however, the Court appears likely to address an environmental law issue that has been in dire need of clarification – the extent of federal jurisdiction over waterbodies and adjacent wetlands. Given the conservative leanings of the current Supreme Court, it is not unreasonable to conclude that the Justices will finally issue an opinion that provides a bright-line test for determining whether waterbodies or wetlands are jurisdictional waters of the United States under the Clean Water Act. Whether that is based on Justice Scalia’s opinion in Rapanos, which served as the foundation for the Trump Administration’s now-stricken Navigable Waters Protection Rule, remains to be seen. Regardless of the forthcoming decision, this will hopefully be the final chapter in the Sacketts’ lengthy saga to build a home.
