By Norman M. Semanko

The Clean Water Act (“the Act”) has become fertile ground for extensive litigation in the federal courts. And no issue has been more prominent than the Act’s jurisdictional trigger term, “navigable waters,” defined in the Act simply as “the waters of the United States” (“WOTUS”).[ii] This determines whether projects and other activities require federal permits to discharge into, dredge, or fill waters.[iii] The most recent addition to this series of cases, Sackett v. Env’t Prot. Agency,[iv] provides an updated definition of WOTUS and comes to us from Bonner County. This article provides a brief background of the litigation before Sackett, the route by which Sackett arrived at the Supreme Court of the United States, the Court’s updated definition of WOTUS as provided in Sackett’s majority opinion, and some thoughts on what comes after Sackett.

Setting the Stage for Sackett

For 50 years, the question of what constitutes “the waters of the United States” was left to the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers to determine through rulemaking and associated guidance and manuals. While the U.S. Supreme Court came tantalizingly close to announcing a WOTUS test in Rapanos v. United States,[v] it ultimately failed to deliver a majority opinion in that case.

In Rapanos, a plurality opinion of four Justices, authored by Justice Scalia, concluded that “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”[vi] Under the plurality test, “the waters of the United States” are relatively permanent bodies of water connected to traditional interstate navigable waters through a continuous surface connection.[vii] One Justice concurred with the plurality in the result (that wetlands near ditches and drains that eventually emptied into navigable waters at least 11 miles away were not jurisdictional under the Act) – but not in its reasoning. This broader interpretation of jurisdiction under the Act found that “the waters of the United States” include those waters and adjacent wetlands that possess a “significant nexus” to traditional navigable waters.[viii]

Since Rapanos, the scope of “navigable waters” has gone back and forth – expanding and contracting – thereby resembling a game of ping pong between different Presidential Administrations.[ix] All of that changed with the U.S. Supreme Court’s May 25, 2023 ruling in Sackett v. EPA.[x]Interestingly enough, the story begins and ends in North Idaho.

The Sacketts’ Route to the Supreme Court

Michael and Chantell Sackett own a small piece of property near Priest Lake, in Bonner County, Idaho. The Sacketts wanted to build a home on their lot and began to fill it with dirt and rocks in preparation for the construction. The EPA stepped in and issued a compliance order to the Sacketts, threatening civil penalties of approximately $40,000 per day and informing them that their activities violated the Act because their property contained jurisdictional wetlands. The Sacketts maintained that the EPA had no jurisdiction over their property under the Act.[xi]

After several years of proceedings, the U.S. District Court entered summary judgment for the EPA and the Ninth Circuit affirmed, holding that the Act covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.[xii] The Supreme Court granted certiorari to decide the proper test for determining whether wetlands are “waters of the United States.”[xiii]

At the time that Sackett was under consideration in the Ninth Circuit, litigation brought in numerous federal district courts by states and various groups, challenging the regulatory definition of WOTUS, was calculated to result in the issue ultimately being taken up by the U.S. Supreme Court. As predicted, however, Sackett proved to be the wild card that actually made it to the Supreme Court.[xiv]

The Sackett Majority Opinion Explained

Justice Alito delivered the opinion of the Court on behalf of a majority of five Justices.[xv] The Court held that the Act only applies to wetlands that have a “continuous surface connection” with “waters of the United States.”[xvi] In doing so, the opinion expressly adopted Justice Scalia’s plurality opinion from Rapanos. It also rejected Justice Kennedy’s “significant nexus” test.[xvii]

The Sackett majority opinion adopted Justice Scalia’s Rapanos conclusion that “waters” in the Act encompasses “only those relatively permanent, standing or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, and lakes,” also referred to as “traditional navigable waters.”[xviii] Further, the opinion concluded that wetlands are included within “waters of the United States” and must therefore “qualify as waters of the United States in their own right.” The wetlands must be “indistinguishably part of a body of water that itself constitutes waters of the United States.”[xix]  As the plurality stated in Rapanos, the term “waters” in the Act “may fairly be read to include only those wetlands that are as a practical matter indistinguishable from waters of the United States, such that it is difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”[xx] Such “indistinguishability” only “occurs when wetlands have a continuous surface connection to bodies that are waters of the United States in their own right so that there is no clear demarcation between ‘waters’ and wetlands. […] Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”[xxi]

What’s Next?

Even with the Sackett majority opinion now firmly in place, litigation is sure to continue, including ongoing challenges to the Biden Administration’s WOTUS Rule,[xxii] which is underpinned by the now defunct “significant nexus” test.[xxiii] Already, the Biden Rule has been stayed in 27 states – including Idaho – while the federal courts ultimately proceed to determine its validity under the Act.[xxiv] Idaho and Texas have jointly filed a motion for summary judgment, seeking to strike down the Biden WOTUS Rule in its entirety as being in violation of the Supreme Court’s holding in Sackett.[xxv]

In the meantime, the Biden Administration has indicated that it will revise its existing WOTUS Rule no later than September 1, 2023, in an attempt to conform to the Supreme Court’s decision in Sackett.[xxvi] This move may also be susceptible to legal challenges, depending upon how the rule change is accomplished – with or without notice and an opportunity for public comment – and whether it is successful in actually adhering to the Court’s pronouncements in Sackett.

Whether the game of regulatory ping pong is over or not, Sackett proved itself as the wild card in what turned out to be a winning hand before the U.S. Supreme Court.

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[i] A wild card is “an unknown or unpredictable factor” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/wild%20card. Accessed 6 Jul. 2023.

[ii] 33 U.S.C. § 1362(7).

[iii] 33 U.S.C. §§ 1342, 1344.

[iv] 143 S. Ct. 1322 (2023).

[v] 547 U.S. 715 (2006).

[vi] 547 U.S. at 739 (plurality opinion).

[vii] 547 U.S. at 742, 755 (plurality opinion).

[viii] 547 U.S. at 759, 779-780 (opinion of Kennedy, J.).

[ix] Norman M. Semanko, Red Paddle-Blue Paddle: Clean Water Act Ping Pong, 64 Advocate 22 (2021).

[x] 598 U.S. ___, 143 S.Ct. 1322 (2023).

[xi] See generally, Sackett v. EPA, 566 U.S. 120 (2012) (also known as “Sackett I” to distinguish it from the 2023 case) (holding that EPA compliance order was final agency action and therefore subject to review under the APA).

[xii] 8 F.4^th 1075, 1091-93 (2021).

[xiii] 595 U.S. ___ (2022).

[xiv] 64 Advocate 22 (2021).

[xv] The Ninth Circuit’s decision was reversed and remanded, 9-0. In addition to Justice Alito’s majority opinion, concurring opinions were penned by Justices Thomas, Kagan, and Kavanaugh.

[xvi] 143 S.Ct. at 1322.

[xvii] Id. at 1341-43.

[xviii] Id. at 1336-37 (citing 547 U.S. at 739).

[xix] Id. at 1339.

[xx] 547 U.S. at 742.

[xxi] 143 S.Ct. at 1340.

[xxii] 88 Fed. Reg. 3004 (2023).

[xxiii] Id. at 3006, 3143.

[xxiv] https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update (accessed July 6, 2023).

[xxv] States’ Motion for Summary Judgment, Case No. 3:23-cv-00017 (S.D. Tex. June 28, 2023).

[xxvi] https://www.epa.gov/wotus/amendments-2023-rule (accessed July 6, 2023).