October 3
Sackett v. Environmental Protection Agency
No. 21-454, 9th Cir.
Preview by Robert L. Glicksman, J.B. & Maurice C. Shapiro Professor of Law, George Washington University Law School
When do wetlands qualify as “waters of the United States” subject to regulation under the federal Clean Water Act (the CWA or the Act)? That is the issue in Sackett v. EPA, and its resolution will be a critical determinant of the statute’s scope.
The stated purpose of the CWA is the restoration and maintenance of “the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve that purpose, the statute sets an aspirational goal of eliminating pollutant discharges into surface waters by 1985, and a more realistic goals of ensuring fishable, swimmable water quality by 1983. Id. § 1251(a)(1)(2).
The statute’s principal mandate is a prohibition on the discharge of any pollutant, but the Act allows discharges if they comply with one of two kinds of permits. Id. § 1311(a). Under the National Pollutant Discharge Elimination System (NPDES) permit program, EPA or authorized states may issue permits that impose “effluent limitations” on pollutant discharges from industrial or municipal sources. Id. § 1342(a). Compliance with such a permit shields the discharger from enforcement of the no discharge prohibition against it. Id. § 1342(k). The statute also authorizes the deposit of dredged or fill material associated with activities such as channel dredging or construction in compliance with a permit issued by the U.S. Army Corps of Engineers (subject to EPA oversight). Id. § 1344(a). Compliance with such a permit also creates an enforcement shield. Id. § 1344(p).
The scope of § 1311(a)’s prohibition, and thus of the applicability of the two permit programs, depends on the definition of a “discharge of a pollutant.” The CWA defines that term as “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12). It also defines “navigable waters” as “the waters of the United States.” Id. § 1362(7).
The Supreme Court has addressed the meaning of the term “waters of the United States” in three prior cases. All three involved the dredge or fill permit program, not the NPDES program. Despite repeated efforts to clarify what qualifies as a water of the United States, the answer remains murky. In the first case, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court deferred to the view of EPA and the Corps that wetlands adjacent to certain categories of navigable waters (which extend beyond navigable in fact waters) qualify as waters of the United States. It rejected the simplistic position that wetlands cannot qualify as waters of the United States because, after all, they are lands, not waters. In the second case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), the Court held the Corps exceeded its authority by treating isolated, intrastate, abandoned, water-filled sand and gravel mining pits as waters of the United States simply because migratory birds used them as habitat.
The Court’s third effort to establish the parameters of CWA jurisdiction came in Rapanos v. United States, 547 U.S. 715 (2006). The Court failed miserably in that effort. The justices wrote four separate opinions, none of which garnered support from a majority of the Court. Justice Scalia, joined by three other justices, wrote a plurality opinion limiting CWA jurisdiction to relatively permanent, standing, or continuously flowing bodies of water, but excluding waters or wetlands with merely intermittent or ephemeral flow. Three justices joined Justice Stevens’ dissent, which interpreted “waters of the United States” more expansively to include wetlands adjacent to tributaries of traditionally navigable waters. Justice Kennedy wrote a solo concurrence in which he agreed with the majority that the wetlands at issue in that case were not covered, but refused to join Justice Scalia’s opinion. Kennedy’s test for CWA coverage was whether a water or wetland possesses a “significant nexus” with traditional navigable waters. That nexus exists if coverage of particular wetlands is needed to achieve the statutory goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters.
Following Rapanos, the lower courts, with almost no exceptions, treated Justice Kennedy’s significant nexus test as controlling, providing more expansive statutory coverage than Justice Scalia’s approach would have done. But the confusion persisted, as EPA and the Corps expanded or contracted the Act’s coverage with every change of presidential administration.
Enter the Sacketts. The Sackett case, like the three earlier cases, arose under the dredge or fill permit program. The Corps informed the Sacketts that the “soggy residential lot” in Idaho, Sackett v. EPA, 8 F.4th 1075, 1079 (9th Cir. 2021), on which they wished to build a home, included jurisdictional wetlands that they had improperly filled. The Sacketts argued that EPA and the Corps lacked the authority to require them to apply for a permit as a condition on development. In their first trip to the Supreme Court, the Court agreed with the Sacketts that an administrative compliance order issued by EPA was a judicially reviewable final agency action. Sackett v. EPA, 566 U.S. 120 (2012). On remand, the Sacketts challenged the compliance order, arguing that Justice Scalia’s plurality opinion provides the governing standard and that their property does not include jurisdictional wetlands because they lack a continuous surface connection to traditional navigable waters. The Ninth Circuit held that the significant nexus test controlled and that the Sacketts’ wetlands are covered because they are adjacent to a jurisdictional tributary and share a significant nexus with nearby Priest Lake. Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021).
The Supreme Court granted certiorari to address which test governs whether wetlands qualify as “waters of the United States.” Sackett v. EPA, 142 S. Ct. 896 (2022). The Sacketts continue to argue that the Scalia test is controlling, giving rise to a two-step inquiry. First, are the wetlands in question inseparably bound up with a hydrological feature that in ordinary parlance would be called a “water” by means of a continuous surface water connection, such that it is difficult to tell where the wetlands end and the “water” begins? If so, the wetlands are covered only if the “water” is a water body subject to Congress’s authority to regulate the channels of interstate commerce. The government favors applying the significant nexus test, claiming that the mere presence of a man-made barrier between a wetland and an adjacent covered water, such as one that exists on the Sacketts’ property, does not defeat CWA jurisdiction. It asserts that only the significant-nexus test ensures that the CWA covers those wetlands that significantly affect the chemical, physical, and biological integrity of traditional navigable waters.
At oral argument, the justices seemed uncomfortable with either position. Several pointed out that the CWA clearly covers some wetlands because while it allows a state to administer its own dredge or fill permit program, and only federal regulators have permitting authority over interstate waters, “including wetlands adjacent thereto.” 33 U.S.C. § 1344(g)(1). The justices seemed to be searching for a middle ground which is not as restrictive as the Scalia test but not as expansive as the government’s desired application of the significant nexus test, or at least for a test that will create more certainty than either of the two Rapanos tests.
The result in this case matters. Endorsement of the Scalia test would exempt a significant percentage of the nation’s wetlands and waters from coverage, especially in the arid West where intermittent flows are common. As importantly, unless the Court finds a way to distinguish the NPDES and dredge or fill permit programs, any limitation that the Court identifies on the scope of the latter program will also affect § 1311(a)’s application to chemical and municipal sewage discharges. The scope of both permit programs is governed by the same key statutory term—“the waters of the United States.”
The oral argument highlighted the concept of adjacency, which may be the hook on which the Court hangs its interpretation of this term. If the Court displaces both the Scalia and Kennedy tests with one that turns on the adjacency of wetlands to traditional navigable waters or their tributaries, the long process of fleshing out the parameters of CWA jurisdiction will likely not yet have reached its end. If the Court regards adjacency as the core requirement for CWA coverage of wetlands, it is likely to remand back to EPA and the Corps to allow them to flesh out that concept in future iterations of the jurisdictional provisions of their CWA regulations.
