The new Supreme Court term begins Monday, and the first oral argument will be in Sackett v. Environmental Protection Agency, which marks the return of “the waters of the United States” issue to the Court. It also marks the return of litigants who were last before the Court ten years ago.
House construction often takes longer than expected, but leave it to the bog of bureaucracy to incur excessive delays even on property already owned—and despite an intervening favorable decision from the Court. Michael and Chantell Sackett’s dream of building a home on land they own near Priest Lake, Idaho, has been frustrated for fifteen years by the Environmental Protection Agency (EPA). In 2007, the Sacketts filled in a portion of their land with gravel and dirt to prepare for the construction of their dream home. A short time later, the EPA issued an order alleging that the Sacketts had violated the Clean Water Act by doing so without first obtaining a permit. Although their lot has no surface water that is connected to any other body of water, the EPA contended that it contains wetlands that qualify as “navigable waters” defined as “waters of the United States” (WOTUS) subject to regulation under the Clean Water Act. The agency demanded that the Sacketts restore the lot to its original condition.
The Sacketts’ brief on the merits sets out how convoluted the EPA’s jurisdictional claim is:
The Sacketts’ property contains no stream, river, lake, or similar waterbody. Yet EPA persists in its view that the Sacketts must obtain federal approval to build on their lot. . . . because: Priest Lake is a navigable water → A non-navigable creek connects to Priest Lake → The non-navigable creek is connected to a non-navigable, man-made ditch → The non-navigable, man-made ditch is connected to wetlands → These wetlands, though separated from the Sacketts’ lot by a thirty-foot-wide paved road, are nevertheless “similarly situated” to wetlands alleged to exist on the Sacketts’ lot → These alleged wetlands on the Sacketts’ property, aggregated with the wetlands across the street, bear a “significant nexus” to Priest Lake.
Facing the possibility of an enforcement action and fines if they refused the EPA’s demands, the Sacketts went to court. Lower courts initially dismissed the couple’s lawsuit, reasoning that since the EPA hadn’t filed an enforcement action against the Sacketts their lawsuit was premature. A unanimous Supreme Court reversed in a 2012 ruling, holding that the EPA’s compliance order constituted a “final agency action” and was therefore subject to judicial review.
Fast forward ten years. After losing their case in the Ninth Circuit, the Sacketts are now back in the Supreme Court, which has the opportunity to address the definition of WOTUS head on. And this is far from its first opportunity. WOTUS cases have been a regular occurrence in the high court, thanks in large part to a split ruling in Rapanos v. United States (2006). There a fragmented Court held that the Clean Water Act does not regulate all wetlands, but it did not agree upon a standard for evaluating cases. Justice Antonin Scalia set forth a cogent test to define WOTUS, but he wrote for only four justices. By Scalia’s standard, the EPA could regulate wetlands only when the land has a continuous surface water connection to regulated waters. Under that test, the Sacketts’ lot is beyond the EPA’s authority, and the Sacketts can finally get back to building their dream house.
But Justice Anthony Kennedy’s Rapanos concurrence in the judgment advanced an amorphous, case-by-case standard asking whether wetlands have a “significant nexus” to traditionally navigable waters. The Ninth Circuit endorsed Kennedy’s approach, which the Biden administration is also backing, while the Sacketts urge the Court to adopt Scalia’s test.
So the Court will begin a momentous new term with a deep dive into WOTUS under the Clean Water Act. This case should not have been necessary, but it is an instructive example of how a court’s failure to set forth clear, administrable rules can be expected to keep generating similar litigation until the court speaks with clarity and fidelity to text. Hopefully a majority of the Supreme Court will adopt Scalia’s clearer textualist interpretation of the Act. That would end the Sacketts’ ordeal, not to mention that of many other WOTUS litigants or potential litigants who may otherwise find themselves drowning in federal bureaucracy.