What is the proper test to determine which wetlands fall within the scope of regulation under the Clean Water Act?
This case asks the Supreme Court to determine the jurisdiction granted to the Environmental Protection Agency (“EPA”) by the Clean Water Act (“CWA”) to regulate wetlands. One test for determining whether a wetland falls under the CWA is the continuous surface connection test, which allows a wetland to be regulated when it shares a continuous surface connection with a body of water. Another test is the significant nexus test, which allows an adjacent wetland to be regulated when it significantly affects waters covered under the CWA, regardless of a surface connection between them. The Sacketts assert that, under the principles of statutory interpretation and congressional intent, a version of the continuous surface connection test is proper and therefore their lot of land does not fall under the jurisdiction of the CWA. The EPA counters that due to judicial deference to administrative agencies’ interpretations of statutes, the significant nexus test is the proper test, and therefore the Sacketts’ land does fall under the jurisdiction of the CWA. The Court’s decision in this case implicates the costs which industries must bear for their infrastructure, the allocation of state and federal power, and the protection of water quality across the United States.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act, 33 U.S.C. § 1362(7).
In 1972, Congress enacted the Clean Water Act (“CWA”) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Sackett v. United States EPA at 1079. The CWA prohibits any person from discharging pollutants into the “waters of the United States” without a permit. Id. at 1079. The U.S. Army Corps of Engineers (“Corps”) has adopted various definitions for the “waters of the United States” over time, and courts have struggled to settle upon an interpretation. Id. at 1079.
In Rapanos v. United States, the Supreme Court was split on how to define “waters of the United States.” Rapanos v. United States at 779–80. Justice Scalia, in a plurality opinion, concluded that the CWA applies to wetlands with “continuous surface connection[s]” to relatively permanent waters. Id. at 742. Concurring, Justice Kennedy articulated the significant nexus test, concluding that the CWA only applies to wetlands if the wetlands “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Id. at 759.
In 2004, the Petitioners Chantell and Michael Sackett bought a 0.63-acre, soggy residential lot which is 300 feet from Priest Lake in Idaho. Id. at 1081. North of the Sacketts’ lot, there is a large wetlands complex that drains into a tributary. Id. The tributary feeds into a creek which flows southwest of the Sacketts’ lot and into Priest Lake. Id. In 2007, the Sacketts began to backfill their lot with sand and gravel. Id. Shortly after, the Environmental Protection Agency (“EPA”) and the Corps visited the Sacketts’ property and suggested that they obtain a discharge permit from the Corps. Id. After six months, the EPA sent the Sacketts an administrative compliance order, which required that the Sacketts obtain a discharge permit under the CWA. Id. The EPA also provided a Restoration Work Plan, which imposed a five-month deadline to restore the property. Id. The administrative compliance order stated that after the five-month deadline, the Sacketts would face civil and administrative penalties of over $40,000 per day. Id.
Prior to the Restoration Work Plan’s deadline, the Sacketts sued the EPA. Id. The Sacketts sought declaratory and injunctive relief, arguing that the CWA did not apply to their property and thus, they should not have to comply with the CWA’s original compliance order. Id. The EPA issued an amended compliance order which extended the deadline for compliance, but otherwise was identical to the original compliance order. Id. The EPA filed a motion to dismiss the lawsuit because it was not a “final agency action . . . subject to judicial review” under the Administrative Procedure Act, which the district court granted. Id. at 1081–82. The Supreme Court granted certiorari and reversed on this issue in Sackett v. EPA, holding the original administrative compliance order constituted a final agency action subject to judicial review. Id. at 1082.
On remand, the Sacketts challenged the compliance order for the next seven years. Id. In March 2019, the district court granted summary judgment in favor of the EPA, finding the CWA applied to the Sacketts’ lot. Id. The Sacketts appealed the grant of summary judgment. Id. Afterward, the EPA withdrew its compliance order and moved to dismiss the appeal as moot. Id. The 9th Circuit Court of Appeals held that the EPA’s withdrawal of the compliance order did not render the case moot. Id. at 1079. The 9th Circuit then affirmed the district court’s decision, finding that the EPA can regulate the Sacketts’ lot under the CWA. Id. The Supreme Court granted certiorari on January 24, 2022.
SCOPE OF THE CLEAN WATER ACT
The Sacketts argue that the proper test for whether wetlands are covered under the CWA is a version of the continuous surface connection test articulated in the plurality opinion in Rapanos v. United States. Petitioners’ Brief on the Merits, Michael and Chantell Sackett at 25, 28–29.
The Sacketts posit that the CWA does not authorize the EPA to regulate wetlands that do not have a “continuous surface connection” with a body of water that is covered by the CWA. Id. at 28–29. According to the Sacketts, extending the CWA to include wetlands that lack surface connections with covered bodies of water would go beyond the scope of the EPA’s authority. Id. at 28–29. The Sacketts’ test requires the wetland to have a “continuous surface connection” with a covered water and subject to Congress’s Commerce Clause powers to be considered a covered water under the CWA. Id. at 28–29. The Sacketts maintain that the significant nexus test, for which the EPA argues, is therefore not the proper test because, since it does not limit the CWA’s scope to wetlands with a continuous surface connection with a covered body of water, it goes beyond the scope of the CWA. Id. at 45–47. The Sacketts elaborate that the “significant nexus” test does not track the language of the CWA, whereas their test includes phrases from the statute itself. Id. at 45. The Sacketts further argue that the language of the CWA purposefully does not mention wetlands, so to include wetlands beyond ones with continuous surface connections to covered waters would be contrary to the statutory text and to congressional intent. Id. at 27–28.
The EPA counters that the CWA does not require a continuous surface connection, and that to require such a surface connection would drastically limit the CWA’s scope based on “arbitrary and shifting distinctions.” Brief for the Respondents, EPA at 18, 40. According to the EPA, the Supreme Court should apply the significant nexus test, which considers wetlands to be covered by the CWA if they, individually or cumulatively with nearby waters, “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Id. at 45. The EPA further counters that the Sacketts’ test is divorced from congressional intent and statutory history because, by defining the term “navigable” broadly as “waters of the United States,” Congress manifested its intent for the CWA to reach beyond navigable waters and waters continuously connected to them. Id. at 17–19. The EPA contends that the significant nexus test is consistent with statutory language and congressional intent because it navigates the dual definitions of the waters covered by the CWA because while the language of “the waters of the United States” is broad, that language is defining “navigable waters,” a phrase used in other laws and that is more limited. Id. at 32. The EPA elaborates that the significant nexus test embraces both aspects of the statute’s language because it acknowledges that historically navigable waters are the focus of the CWA’s protection, but also that in order to protect those waters, features such as adjacent wetlands must be regulated. Id. at 33.
The Sacketts argue that the EPA is not entitled to judicial deference because its interpretation of the CWA is unreasonable. Reply Brief, Michael and Chantell Sackett at 21. The Sacketts elaborate that according to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., an agency’s understanding of a statute granting it authority is entitled to deference only if the agency’s interpretation is reasonable or there is clear congressional intent. Id. The Sacketts elaborate that the congressional intent is clear through the CWA’s use of the term “waters.” Id. According to the Sacketts, the term “waters” embodies Congress’s clear intent to limit the CWA in a manner consistent with the continuous surface connection test, making the EPA’s interpretation unreasonable. Id. The Sacketts caution that the EPA’s history of regulation cannot act as a basis for congressional intent because it is divorced from the actual text Congress enacted, and therefore does not alter the unreasonableness of the EPA’s interpretation of the statute. Id. The Sacketts further maintain that the only reasonable interpretation of the CWA involves the continuous surface connection requirement, and that the EPA’s interpretation involving the significant nexus test is therefore unreasonable and not entitled to judicial deference. Id.
The EPA counters that its interpretation of the CWA’s power to regulate adjacent wetlands is entitled to deference under Chevron because its interpretation of the CWA is reasonable. Brief for the Respondents at 38. The EPA maintains that its interpretation of the CWA as covering adjacent wetlands that pass the significant nexus test is reasonable because of the EPA’s decades-long history of construing the CWA as such. Id. at 38. The EPA posits that its interpretation is reasonable because the significant nexus test reflects a narrower rule than the agency had used prior to the Rapanos decision, demonstrating that the EPA took into account the statute, the Supreme Court’s decisions, and its own expertise. Id. at 39–40. Additionally, the EPA emphasizes that it followed the regulatory rulemaking procedure put forward in Chief Justice Roberts’s concurring opinion in Rapanos, further establishing its reasonableness. Id. at 39. According to the EPA, the use of the significant nexus test is a reasonable interpretation of the CWA, and as such, its decision to use the significant nexus test is entitled to discretion by the court. Id. at 38.
NATURAL VS. MAN-MADE FEATURES & FEDERALISM
The Sacketts argue that the man-made ditch across the street from their lot is not a “water” under the CWA, and that including man-made bodies of water under the CWA’s “water” definition would raise federalism concerns. Petitioners’ Brief on the Merits at 50–52. The Sacketts elaborate that a man-made construction is generally considered a “constructed channel” rather than a “water,” and that the CWA itself treats man-made features as “point sources,” showing intent not to include such features within CWA jurisdiction. Id. at 50–51. According to the Sacketts, the ditch across the street from their lot does not qualify as a “water” covered by the CWA, despite its small amount of continual water flow, because the ditch is not fairly classified as a body of water. Id. at 51. The Sacketts further contend that extending jurisdiction to such man-made features would extend beyond Congress’s power and would therefore infringe upon state authority. Id. at 52. The Sacketts warn that waters outside the realm of interstate commerce are traditionally within state authority to regulate and that extending CWA jurisdiction to man-made waters could encroach upon the power reserved to states under the Tenth Amendment and the state’s traditional power to regulate land use and development. Id. at 46–47.
The EPA counters that man-made features that are “relatively permanent” are considered a “water” under the CWA, and that the significant nexus test’s regulation of such features does not raise federalism concerns because the test is within the bounds of Congressional authority. Brief for the Respondents at 42–44. The EPA asserts that excluding man-made waters would not only drastically undercut the history and purpose of the CWA but would also undermine the CWA’s provision acknowledging that drainage ditches are covered by the Act. Id. at 42–43. According to the EPA, because the ditch across the street from the Sacketts’ lot has a continuous flow of water and is therefore relatively permanent, the ditch properly falls under the CWA’s jurisdiction. Id. at 42–44. The EPA further argues that the significant nexus test’s inclusion of such man-made features allows the CWA to use the full scope of its Commerce Clause powers, but not beyond, because those powers extend to regulation beyond traditional navigable waters only so long as the regulated activities “significantly affect” those traditional waters. Id. at 38. According to the EPA, the significant nexus test therefore does not infringe upon the principles of federalism because the test does not push the CWA’s authority beyond the constitutional limits of Congress’s Commerce Clause powers. Id.
National Stone, Sand and Gravel Association et al. ("National Stone"), in support of Petitioners, argue that the significant nexus test is an “overly broad and ambiguous” standard for determining which waters are covered by the CWA. Brief of Amici Curiae National Stone, Sand and Gravel Association et al. ("National Stone"), in Support of Petitioners at 10. National Stone argues that uncertainty over whether the CWA applies to a given wetland will delay infrastructure projects and the supply of critical materials. Id. at 13–14. Additionally, the Southern Legal Foundation asserts that the significant nexus test’s ambiguity imposes high costs on landowners: for example, landowners may face penalties if they mistakenly believe the CWA does not apply to their land, or face increased costs for the professional and scientific expertise and coordination with agencies required to secure a permit. Brief of Amicus Curiae Southeastern Legal Foundation, in Support of Petitioners at 9. Americans for Prosperity Foundation contends that the significant nexus test may risk arbitrary and discriminatory enforcement. Brief of Amicus Curiae Americans for Prosperity Foundation, in Support of Petitioners at 29. Moreover, the Property and Environment Research Center ("PERC") argues that regulatory uncertainty will disincentivize landowners from participating in voluntary conservation efforts. Brief of Amicus Curiae Property and Environment Research Center ("PERC"), in Support of Petitioner at 15.
In contrast, Scientific Societies, in support of Respondents, argue that improving water quality should take precedence over calls for bright-line rules. Brief of Amicus Curiae Scientific Societies, in Support of Respondents at 18–19. According to Scientific Societies, although Petitioners’ proposed framework provides more certainty, it disregards interconnected aquatic ecosystems and reduces the CWA’s coverage over wetlands. Id. at 32. Moreover, Waterkeeper Alliance et al. (“Waterkeeper Alliance”) argue that a single bright-line rule would fail to account for the many distinct categories of water and, in effect, exclude several important categories. Brief of Amicus Curiae Waterkeeper Alliance et al. (“Waterkeeper Alliance”), in Support of Respondents at 21. New York et al. (“New York”) argue that any uncertainty from the significant nexus test will not impose such a large burden on industry, because dischargers may apply for general permits for entire geographic regions, rather than file applications for individual discharges. Brief of Amici Curiae New York et al. (“New York”), in Support of Respondents at 30. In addition, American Sustainable Business Network et al. assert that a “robust and durable” application of the Clean Water Act promotes job growth and economic benefits from ecological restoration, and, thus, the benefits outweigh the modest costs of the Clean Water Act. Brief of Amici Curiae American Sustainable Business Network et al., in Support of Respondents, at 23, 27.
TRADITIONAL PROVINCE OF THE STATES
National Stone, in support of Petitioners, argues that states and localities are better suited to regulate water quality. Brief of National Stone at 31. Congressional Western Caucus Members and Farm Bureaus of Arkansas et al. ("Farm Bureaus") assert that a "one-size-fits-all" federal standard fails to account for the variety of ecosystems and local needs across states. Brief of Amici Curiae Congressional Western Caucus Members, in Support of Petitioners at 6; Brief of Amici Curiae Farm Bureaus of Arkansas et al. ("Farm Bureaus"), in Support of Petitioners at 13. In particular, the Farm Bureaus contend that states should regulate water quality because they understand local geographies, climates, economies, resources, soil capacity, and the population. Brief of Farm Bureaus at 13. According to the Farm Bureaus, state regulation promotes participatory democracy. Id. at 16. PERC posits that states may innovate and remain accountable to voters at the ballot-box, whereas federal regulations may avoid "political censure." Brief of Amicus Curiae PERC, in Support of Petitioners at 19–20.
Colorado, in support of Respondents, counters that federal regulation is necessary to protect the nation’s waters. Brief of Amicus Curiae Colorado, in Support of Respondents at 9. According to Waterkeeper Alliance, Congress passed the CWA after states were unable to adequately control water quality and protect against burning rivers, massive fish kill, declining shellfish populations, and closed beaches. Brief of Waterkeeper Alliance at 17. Furthermore, Constitutional Accountability Center notes that there is a collective action problem for protecting the nation’s waters because heavy-polluting upstream states pass costs onto downstream states who must bear the costs of pollution, poorer water quality, and outsized flood risk. Brief of Amicus Curiae Constitutional Accountability Center, in Support of Respondents at 15. According to New York, absent federal regulation, downstream states lack adequate remedies to address upstream pollution. Brief of New York at 21. Menominee Indian Tribe of Wisconsin et al. assert that federal regulation is necessary to protect tribes’ because states cannot regulate waters within reservations and are not obliged to tribes like the federal government. Brief of Amicus Curiae Menominee Indian Tribe of Wisconsin et al., at 22.
- Robert Barnes, Supreme Court Takes EPA Case That Could Narrow Clean Water Act, The Washington Post (January 24, 2022).
- Amy Howe, Justices Take Up Cases on Power of District Courts and Regulation of Wetlands, SCOTUSblog (January 24, 2022).
- Bobby Magill, EPA Asks Court to Maintain Expansive Federal Waters, Bloomberg Law (June 10, 2022).