This Report summarizes an opinion issued on January 24, 2022 (Part I); and cases granted review on January 21 and 24, 2022 (Part II).

Cases Granted Review: Sackett v. Environmental Protection Agency, 21-454

Sackett v. Environmental Protection Agency, 21-454.  This case seeks to resolve the proper scope of the phrase “waters of the United States” as set forth in the Clean Water Act. The Clean Water Act regulates discharges of “pollutants” from “point sources” to “navigable waters.” Although the Act defines “navigable waters” as “waters of the United States, including the territorial seas,” it does not further define “waters of the United States.” Regulations in effect at the times relevant to this case, however, defined “waters of the United States” broadly to include not only traditional navigable waters (and their tributaries), but also “wetlands adjacent to” such waters. The regulations further stated that wetlands separated from other “waters of the United States” by man-made barriers were nonetheless “adjacent wetlands.”

In 2004, petitioners Michael and Chantell Sackett purchased a vacant property near Priest Lake in Idaho. Although the Sacketts’ property contained “wetlands” as defined by the Act’s regulations, the property did not abut either Priest Lake or a nearby tributary.  Instead, the property was separated from the tributary (and wetlands that did abut the tributary) by a road. After securing all necessary local permits and commencing construction, officials from the Environmental Protection Agency and Army Corps of Engineers directed the Sacketts to cease work until they obtained a permit from the Corps.  Eventually, the EPA issued an administrative compliance order requiring the Sacketts to restore the property to its pre-construction condition.  The Sacketts sought judicial review of the order, claiming that the Act did not give the EPA authority over their property. Resolving the Sacketts’ claim required application of the Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006), in which the Court had attempted to define the scope of the phrase “waters of the United States.” In that case, although a majority of the justices concluded that the EPA’s broad interpretation of “navigable waters” was invalid insofar as it would reach all tributaries of traditionally navigable waters and all wetlands adjacent to such tributaries, the Court’s decision was fractured. Speaking for a four-Justice plurality, Justice Scalia maintained that the Clean Water Act reached only those wetlands that actually abutted other regulated waters, stating that the necessary surface water connection must be so substantial that the wetlands and abutting water are rendered “indistinguishable.”  Justice Kennedy, writing only for himself, disagreed with the plurality and instead proposed a “substantial nexus” standard.  Under this standard, a wetland may be regulated if it, either alone in combination with other “similarly situated” wetlands in the “region,” significantly affects the physical, chemical, and biological integrity of a traditional navigable water.

The district court and the Ninth Circuit (at 8 F.4th 1075) upheld the EPA’s authority to regulate the Sacketts’s lot, both applying Justice Kennedy’s “substantial nexus” standard.  Pointing to division among the circuit courts as to which standard in Rapanos should apply, the Sacketts argue that the Court should resolve this conflict by expressly adopting the “surface-water-connection” test set forth in Justice Scalia’s plurality opinion.  The Sacketts contend that this standard is a “clear, easily administered, constitutionally sound rule for wetlands jurisdiction.”  By contrast, they say, “it is incredibly challenging to figure out what the significant nexus test actually requires.” The EPA counters that “[t]he ‘significant nexus’ standard . . . gives effect to the language of the [Clean Water Act] and its animating purposes.” The EPA also notes that it and the Army Corps of Engineers “have issued for comment a proposed revision to the regulations defining ‘waters of the United States,’” which makes this an inopportune time for the Court to address the meaning of the term.

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]