*Devyn King
I. INTRODUCTION
In April 2007, Michael and Chantal Sackett (the Sacketts) acquired building permits to begin constructing a family home on their lot near Priest Lake, Idaho.[1] The lot has no surface connection to any body of water and is separated from the nearest body of water by a county road.[2] However, it does contain a sub-surface connection to a body of water.[3] Nonetheless, in 1996, prior to the Sacketts purchasing the lot, the Army Corps of Engineers (Corps) determined that the lot contains wetlands that qualify as waters of the United States under the Clean Water Act (the CWA).[4] Under the CWA, developing qualified wetlands requires an individual to obtain a permit from the Corps before placing any fill material on the land.[5]
However, without obtaining a permit from the Corps, the Sacketts “trucked in” over 1700 cubic yards of gravel to fill the wetlands on their lot.[6] The Environmental Protection Agency (EPA) and the Corps inspected the Sacketts’ property in May 2007 following a complaint from the Sacketts’ neighbor and informed the Sacketts that the wetlands were subject to regulation under the CWA.[7] In November 2007, the EPA issued an administrative compliance order directing the Sacketts to remove the gravel fill, re-plant vegetation, and restore the wetland soils.[8] Nearly fifteen years later, the Sacketts’ lot still lies vacant, and the question of whether the CWA authorizes the EPA to claim jurisdiction over the property remains unanswered.[9]
II. A LEGAL STANDARD LOST AT SEA
The CWA[10] enables the EPA and the Corps[11] to regulate the discharge of pollutants into navigable waters.[12] The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas”[13] but does not define “waters of the United States.”[14]
The regulations in effect in 2007 defined “waters of the United States” to include all waters currently and historically used for commerce (also known as “traditional navigable waters”) and tributaries of those waters.[15] Further, the definition included wetlands adjacent to either traditional navigable waters or their tributaries.[16] Under those regulations, a wetland is constituted by a saturation of surface or groundwater sufficient to support vegetation that typically grows in saturated conditions.[17] Even wetlands separated from other waters by artificial barriers were considered adjacent.[18]
In Rapanos v. United States, the Supreme Court of the United States considered which wetlands constituted waters of the United States for EPA regulation under the CWA.[19] A plurality opinion written by Justice Scalia stated that wetlands must possess a “continuous surface connection” to fall under the EPA’s jurisdiction.[20] In his concurrence, Justice Kennedy stated that the EPA can regulate wetlands if they bear a “significant nexus” to navigable waters.[21] Further complicating matters, Justice Stevens’ dissent stated that the Court should have deferred to the EPA’s and the Corps’ determinations,[22] but following the Court’s decision, the EPA should have jurisdiction if either test is satisfied.[23]
Unfortunately, the Rapanos decision failed to provide lower courts any clarity on the matter, leaving federal circuits split on which test to follow.[24] The Fourth, Seventh, Ninth, and Eleventh Circuits have followed Justice Kennedy’s “significant nexus test.”[25] By contrast, the First, Third, and Eighth Circuits have elected to follow Justice Stevens’s dissenting opinion, finding jurisdiction under either test.[26] Moreover, the Fifth and Sixth Circuits have not expressly followed any particular test, instead evaluating cases under all three standards because Rapanos failed to provide a binding rule.[27]
III. THE SACKETTS MAKE WAVES
The ambiguity of a jurisdictional test regarding EPA authority left the Sacketts with a lengthy legal battle. The Sacketts challenged the EPA’s administrative compliance order under the Administrative Procedure Act (APA), contending that the EPA did not have jurisdiction under the CWA to regulate their property because the lot does not contain “waters of the U.S.”[28] The U.S. District Court for the District of Idaho, relying on Justice Kennedy’s “significant nexus” test, granted summary judgment in favor of the EPA.[29] The Ninth Circuit affirmed,[30] and the Supreme Court granted certiorari on January 24, 2022, limited to the issue: “[Did] the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act[?]”[31] The argument is set for October 3, 2022.[32]
IV. HIGH TIDES FOR THE SACKETTS
Amid the ongoing legal battle, the EPA withdrew the administrative compliance order[33] and announced its intent to revise the regulatory definition of “waters of the United States.”[34] Consequently, the EPA argues that any decision of the Supreme Court addressing the statutory language would be premature.[35] However, the Court’s recent decision in West Virginia v. EPA held that “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”[36] The EPA continues to defend its determination and could reinstate the administrative compliance order.[37] Additionally, the rulemaking could result in the same jurisdictional question.[38] Therefore, it is unlikely that the EPA’s argument will prevent the Court from ruling on the matter.
For the Sacketts, the consequences of the Supreme Court’s ruling could mean either facing penalties of over $40,000 per day and completing remediation on their lot,[39] or finally constructing their family home.[40] For the EPA, the ruling will affect how the agency claims jurisdiction over waters of the United States and regulates pollutant discharge across the country, specifically into isolated wetlands and tributaries.[41]
V. CONCLUSION
Following West Virginia v. EPA, this case offers the Supreme Court another opportunity to curb the EPA’s authority to protect the environment.[42] Additionally, confusion will persist until the Court provides a binding rule for which wetlands fall under CWA jurisdiction.[43] Obtaining a permit from the Corps is a lengthy and costly process, and a violation of the CWA could impose hefty fines or criminal liability.[44] Therefore, landowners and developers need to use caution before developing any lands that potentially contain waters of the United States.
*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.
[1] Petition for Writ of Certiorari at 7, Sackett v. EPA, 142 S. Ct. 896 (Sept. 22, 2021) (No. 21-454).
[2] Id. at 6–7.
[3] Id.
[4] 33 U.S.C. § 1362(7) (2018).
[5] Brief for Respondent at 4, Sackett v. EPA, 142 S. Ct. 896 (Nov. 24, 2021) (No. 21-454).
[6] Id.
[7] Id.
[8] Id. See also Petition for Writ of Certiorari, supra note 1, at 13, App. D-2.
[9] Petition for Writ of Certiorari, supra note 1, at 3.
[10] See 33 U.S.C. § 1251 et seq. (2018).
[11] See 33 U.S.C. § 1344 (2018).
[12] Summary of the Clean Water Act, United States Environmental Protection Agency (July 6, 2022), https://www.epa.gov/laws-regulations/summary-clean-water-act.
[13] 33 U.S.C. § 1362(7) (2018).
[14] Petition for Writ of Certiorari, supra note 1, at 8. In contrast, the CWA defines “territorial seas” as “the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.” 33 U.S.C. § 1362(8) (2018).
[15] 33 C.F.R. §§ 328.3(a)(1)–(5) (2008); see also 40 C.F.R. §§ 230.3(s)(1)–(5) (2008).
[16] 33 C.F.R. § 328.3(a)(7) (2008); see also 40 C.F.R. § 230.3(s)(7) (2008).
[17] 33 C.F.R. § 328.3(b) (2008).
[18] 33 C.F.R. § 328.3(c) (2008).
[19] Rapanos v. United States, 547 U.S. 715, 730 (2006).
[20] Id. at 757.
[21] Id. at 779–80.
[22] Id. at 809–10 (Stevens, J., dissenting).
[23] Id. at 810.
[24] Petition for Writ of Certiorari, supra note 1, at 17.
[25] See Precon Dev. Corp., Inc. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir. 2011); U.S. v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999–1000 (9th Cir.2007); U.S. v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007).
[26] See U.S. v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006); U.S. v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011); U.S. v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009).
[27] See U.S. v. Lucas, 516 F.3d 316, 325–27 (5th Cir. 2008); U.S. v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009).
[28] Petition for Writ of Certiorari, supra note 1, at 14.
[29] Sackett v. EPA, No. 2:08-CV-00185-EJL, 2019 WL 13026870, at *11-12 (D. Idaho Mar. 31, 2019), aff’d Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021).
[30] Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1093 (9th Cir. 2021), cert. granted in part sub nom. Sackett v. Env’t Prot. Agency, 142 S. Ct. 896 (2022).
[31] No. 21-454, Supreme Court of the United States, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-454.html (last visited Aug. 27, 2022). The Clean Water Act provision at issue is 33 U.S.C. § 1362(7).
[32] Id.
[33] Brief for Respondent, supra note 5, at 11.
[34] Revising the Definition of “Waters of the United States,” U. S. Env’t Prot. Agency (July 12, 2022), https://www.epa.gov/wotus/revising-definition-waters-united-states.
[35] Brief for Respondent, supra note 5, at 10–11.
[36] West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (quoting Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 719 (2007)).
[37] See Petition for Writ of Certiorari, supra note 1, at 29–30.
[38] Id. at 30.
[39] Sackett, 8 F.4th at 1081.
[40] See supra Part I.
[41] Hannah Northey, When SCOTUS Meets WOTUS, E&E News (July 8, 2022), https://www.eenews.net/articles/when-scotus-meets-wotus/.
[42] Id.
[43] See supra notes 23–25 and accompanying text.
[44] Rapanos, 547 U.S. at 721.
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