On January 24, 2022, the U.S. Supreme Court granted certiorari on a fundamental environmental law question that has lingered for several decades – what is the appropriate definition of "waters of the United States" (WOTUS) in the Clean Water Act (CWA)? The Court could resolve this issue once and for all – most recently addressed by a starkly divided ruling over 15 years ago in Rapanos v. United States.
The case is the latest in a long-running dispute between Michael and Chantelle Sackett and the federal government. EPA previously issued an administrative order against the Sacketts for conducting fill activities on their land without a CWA Section 404 permit. In 2012, the Supreme Court allowed the Sacketts' challenge to EPA's enforcement order to proceed.
After the 2012 ruling, the Sacketts went back to the trial court. Both the district court and the Ninth Circuit agreed with the government and found that the Sacketts needed a Section 404 permit. Applying Justice Kennedy's "significant nexus" test from Rapanos, the courts concluded that the wetlands on the Sacketts' property have a significant nexus to a nearby lake and are therefore waters of the United States. The Sacketts have argued consistently (with support of the Pacific Legal Foundation) that they do not need a permit to develop their land because Justice Scalia's "continuous surface connection" test is the controlling law from Rapanos, and under this more restrictive test, the wetlands are not waters of the United States.
Since Rapanos, courts have split on whether Justice Kennedy's "substantial nexus" or Justice Scalia's "direct surface connection" test is the proper one to apply when determining if a water body is a water of the United States. The Court's grant of certiorari is a win for a wide range of developers of infrastructure and commercial projects, as well as property rights groups that have advocated for adoption of Justice Scalia's more restrictive test.
Significantly, and perhaps as an indication of how this Court is leaning, the decision to take up the latest iteration of the Sacketts' battle expressly rejected the Biden administration's recommendation for the Court not to take the case until the EPA and Army Corps of Engineers finalize a revised definition of WOTUS. With that final administrative action not expected anytime soon, and this matter scheduled to be heard this fall, the Supreme Court could very well beat the administration to the regulatory punch.
The importance of the Court's action and the impending ruling cannot be overstated. The outcome of this case could bring much-needed clarity to the scope of the CWA. Venable's Environmental Practice Group will closely monitor developments before the Court, including the schedule for submitting amicus briefs. At the same time, we will continue to monitor the Biden administration's ongoing regulatory actions on WOTUS, even though the Court might usurp the seemingly never-ending attempt to define the scope of federal water pollution jurisdiction.