This fall, Michael and Chantell Sackett will face the Supreme Court for the second time in their 15-year legal battle with the Environmental Protection Agency (EPA). In January, SCOTUS approved to hear the Sacketts’ appeal to clarify how wetlands are considered jurisdictional under the “water(s) of the United States” (WOTUS) definition.
Sackett v. EPA
In 2007, the Sacketts received a compliance order from the EPA stating they had illegally filled a wetland on their property as they prepared to construct their home. The EPA determined the property was within their jurisdiction under the Clean Water Act and ordered that the land be returned to it’s natural, wetland state. The order also stated that their determination could not be challenged and the Sacketts had no right to use their property. In response, the couple went through the court circuits contesting EPA’s jurisdiction over their land and arguing that they were denied the right to due process. Their case ultimately made it to the Supreme Court in 2012, where the court voted unanimously in support of the Sacketts’ right to challenge the EPA’s order in court.
Implications for 2022
In late 2021, the EPA returned to the pre-2015 definition of WOTUS as they draft a broader rewrite for 2022. EPA has made prominent strides towards the releasing the draft rule, however, they have been urged by members of Congress and several stakeholder comments to postpone the release of the draft rule until the Supreme Court makes a final ruling on the Sackett’s appeal (Neeley 2022). EPA Official, Ron Snyder, stated that although the case will have legal implications for the new WOTUS rule, the EPA is determined to hear other personal accounts from farmers and landowners across the United States to make revisions to the draft rule (Neeley, 2022).
On April 11, the Sacketts and the Pacific Legal Foundation issued their opening brief on the merits for their appeal. The brief establishes their argument that the Significant Nexus Test (Rapanos v. Carabell, 2006) is an inefficient methodology for determining whether a wetland is a “water(s) of the United States”. They continue on in their brief to propose a two-step method in place of the Significant Nexus Test. The framework for their proposed method is as follows:
• Step one: is the wetland inseparably bound up with a “water”—i.e., a stream, ocean, river, lake, or similar hydrogeographic 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 wetland ends and the “water” begins?
• Step two: is the “water” among “the waters of the United States,” i.e., those waterbodies subject to Congress’s authority over the channels of interstate commerce?
This proposed methodology would have major implications for how wetlands are deemed jurisdictional under the Clean Water Act in the future. After this brief was issued, numerous agencies, organizations, states, and members of congress issued their own briefs on the Significant Nexus Test in support of the Sacketts. As these compelling briefs are issued by stakeholders, it will be interesting to see how the court will interpret their views in the case and if they will effect change in EPA’s WOTUS draft rule. Currently, the EPA has yet to issue their brief for the upcoming case.
Sources:
Neeley, T. (2022, April 22). Wetlands determination battle before Supreme Court Sparks Flood of Interest. DTN Progressive Farmer. Retrieved from https://www.dtnpf.com/agriculture/web/ag/news/business-inputs/article/2022/04/22/wetlands-determination-battle-court
Neeley, T. (2022, April 27). EPA’s Snyder: Agency might release WOTUS proposal despite Legal Challenge. DTN Progressive Farmer. Retrieved from https://www.dtnpf.com/agriculture/web/ag/news/business-inputs/article/2022/04/27/epas-snyder-agency-might-release
Sackett V. Environmental Protection Agency. Pacific Legal Foundation. (2022). Retrieved from https://pacificlegal.org/case/sackett-v-environmental-protection-agency/
Legal Briefs:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-454.html