Will the Sackett Test Clarify the Reach of Clean Water Act Jurisdiction?

by Michael C. Ford

“Sackett” may be poised to become a part of the Clean Water Act (CWA) jurisdictional lexicon, joining the likes of Rapanos, significant nexus, relatively permanent, and Solid Waste Agency of Cook County, on the tip of every Clean Water Act practitioner’s tongue.  In a surprise move, the Supreme Court of the United States (SCOTUS) agreed to hear the Sacketts’ case (again).  The Idaho couple has been battling the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) for 17 years for the right to build a home on a half-acre parcel of rural property which may or may not contain wetlands subject to CWA jurisdiction. The Sacketts have prevailed once against EPA in an earlier battle, establishing the right to judicial review of an administrative compliance order. But their war has waged on as the last three presidential administrations and the judiciary have unsuccessfully attempted to clarify the precise scope of CWA jurisdiction. 

On Monday, SCOTUS granted the Sacketts’ petition for a writ of certiorari on the issue of “[w]hether the Ninth 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).” (Sackett v. EPA (case no. 21-454)). The 9^th Circuit, like most federal courts in the wake of the SCOTUS 2006 Rapanos decision, determined Justice Kennedy’s “significant nexus” test was the appropriate measure of CWA jurisdiction, and under the lower court’s application of this test, the Sacketts’ home site contains a jurisdictional wetland requiring a CWA § 404 permit to fill. The significant nexus test was also the basis of the Obama administration’s 2015 rule attempting to clarify CWA jurisdiction (2015 Rule), then rejected by the Trump administration’s 2020 rule with the same objective (2020 Rule), in favor of a rule based on Justice Scalia’s “relatively permanent” test, and is now proposed to be the basis of the Biden administration’s attempt to clarify the CWA jurisdictional morass. Court challenges to the 2015 Rule and 2020 Rule remain pending as EPA and the Corps plod ahead on yet another rulemaking, and recently decided to revert to the pre-2015 Rule/post-Rapanos regulatory landscape in the meantime. The only certainty in the CWA jurisdictional world the last two decades has been change. 

All the while, the Sacketts have battled on. Their perseverance may pay off. The Supreme Court has since added 3 new conservative justices (Justices Gorsuch, Kavanaugh and Coney Barrett), who could well join the 3 who endorsed Justice Scalia’s relatively permanent test in Rapanos (Justices Thomas, Alito and Roberts). It seems fitting that SCOTUS would finally clarify the confusion wrought by Rapanos, and provide a Sackett test to put an end to the endless rulemaking and litigation over the scope of CWA jurisdiction. The SCOTUS decision to hear the Sacketts’ case blindsided the Biden administration, which must now decide whether to forge ahead with a rulemaking that may be eviscerated by a Sackett decision (which should come out in 2023) or pause the rulemaking and await the arrival of the Sackett test.