CWA Headed Back to US Supreme Court, Will Case Result in a New WOTUS Definition?

The U.S. Supreme Court is poised to provide much-needed clarity regarding how to determine whether a body of water is subject to federal jurisdiction under the Clean Water Act (CWA)…

The U.S. Supreme Court is poised to provide much-needed clarity regarding how to determine whether a body of water is subject to federal jurisdiction under the Clean Water Act (CWA). Given that the interpretation of “waters of the United States” under the CWA has divided the lower courts and been subject to several rulemakings by the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers, we are hopeful that the Court will establish a clear and easily administered rule for determining the CWA’s wetlands jurisdiction.

Definition of Waters of the United States

Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or CWA) “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To accomplish this goal, the CWA prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.” 

The appropriate scope of “waters of the United States” has frequently been the subject of environmental lawsuits, with several disputes reaching the U.S. Supreme Court. In Rapanos v. United States, 547 U.S. 715 (2006), the Court held that the CWA does not regulate all wetlands. However, the divided Court could not agree on the proper standard.  

In a plurality opinion, author Justice Antonin Scalia and three other justices argued that only those wetlands with a continuous surface water connection to regulated waters may themselves be regulated as “waters of the United States.”In his concurring opinion, Justice Anthony Kennedy concluded that the appropriate test for the scope of jurisdictional waters is whether a water or wetland possesses a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”

In the wake of Rapanos, some federal courts of appeal have adopted Justice Kennedy’s test as controlling, while others have determined that either Justice Kennedy’s or Justice Scalia’s test can be used. Confusion about the proper application of Rapanos by the lower courts has led to uncertainty for federal agencies, developers, and property owners.

Sackett v. Environmental Protection Agency

Michael and Chantell Sackett own a vacant lot in a largely developed residential subdivision near Priest Lake, Idaho. The lot has no surface water connection to any body of water. In April 2007, the Sacketts began building a family home. Later that year, the EPA sent them an administrative compliance order stating that their home construction violated the CWA because their lot contains wetlands that qualify as regulated “navigable waters” and requiring related compliance action by the Sacketts.  

In 2012, the Supreme Court unanimously ruled that the Sacketts could immediately litigate their challenge to the EPA’s order in federal court. In the proceedings that followed, the Ninth Circuit Court of Appeals employed Justice Kennedy’s “significant nexus” test to uphold EPA’s authority over the Sacketts’ property. The Sacketts appealed, arguing in their petition for certiorari that neither the lower courts, nor the EPA, nor the Army Corps of Engineers have been able to establish a durable definition of WOTUS following the Court’s decision in Rapanos:

The agencies have had no better success figuring out what Rapanos means. They have tried both informal guidance documents and formal notice-and-comment rulemakings. They have tried an amalgam test, combining parts of the significant nexus standard with parts of the Rapanos plurality test. They have tried elaborating on just significant nexus. And most recently, they have looked primarily to the Rapanos plurality opinion. Yet each effort has failed to produce a workable rule that would satisfy the lower courts’ conflicting views of what Rapanos allows. 

The Supreme Court granted certiorari in Sackett v. Environmental Protection Agency on January 24, 2022. The justices have agreed to consider the following question: “Whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the CWA.” 

While oral arguments have not yet been scheduled, a decision is expected by the end of the Court’s term in June. 

Impact of Supreme Court’s Decision

The Supreme Court’s decision in Sackett v. Environmental Protection Agency will likely impact the regulatory definition of “waters of the United States” currently under development by the EPA and the Army Corps of Engineers. This decision will have wide-ranging ramifications for commercial, industrial, and residential property owners and developers as it may set a single, overarching standard regarding the scope of Clean Water Act jurisdiction and related permitting and regulatory requirements.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.