Sackett v. EPA (2022): What Environmental Protection Is Afforded by the Clean Water Act?
The adjacency of a given wetland to a navigable body of water is not a concept commonly considered. However, the precise definition of this concept is one that could impact the U.S. Environmental Protection Agency’s (EPA) regulatory ability to protect public waters from contamination, pollution, and overall degradation for decades to come. In 2022, the Court announced they would hear a ground-breaking environmental case, Sackett v. Environmental Protection Agency (2022), which directly questions whether “adjacent wetlands” are protected by the Clean Water Act (CWA). [1] Sackett stands to threaten regulatory power stemming from the CWA, which gives the EPA the right to protect adjacent wetlands and has the intended purpose of protecting the Waters of the United States (WOTUS) from any environmental degradation. The case concerns a portion of the Sackett family’s property located on a wetland and considers whether these wetlands are considered “navigable” and therefore WOTUS. [2] The Supreme Court will be forced to determine what constitutes “navigable waters,” the proper test to determine the status of protection wetlands face, and potentially reshape environmental law in the face of a new and potentially far less regulated interpretation of the EPA’s regulatory bounds. In doing so, the Court will also consider existing precedent, including Rapanos v. U.S. (2006), which established definitions of “adjacency.” Yet, examining the factors present in Sackett v. EPA (2022) reveals that the wetlands in consideration have a compelling regulatory right to be protected by the EPA.
Sackett originated in 2007 and directly questions the regulatory applications of the Clean Water Act, the definition of “adjacency,” and the types of wetlands that are to be protected by the CWA as WOTUS. Michael and Chantelle Sackett own property roughly three hundred feet from Priest Lake, a recognized “navigable water” and WOTUS. Navigable waters are defined by the Army Corps as those that are used, have been used in the past, and have the potential to be used to transport interstate or foreign commerce. [3] In the early 2000s, the Sacketts attempted to build on their property. They requested a permit from the EPA, as is required by the CWA. [4] Additionally, they requested a Section 404 Permit for discharge of dredge and fill material into navigable waters from the Army Corps of Engineers. [5] The CWA makes it unlawful to discharge dredged or fill material into “navigable waters'' without an official permit. Due to these concerns, the EPA rejected their permit — arguing their land is a wetland adjacent to Priest Lake, and therefore, protected by the CWA. [6] The Sacketts contested the decision, and the Ninth Circuit upheld the EPA’s determination based on “adjacency.” [7]
In 2012, the case first went to the Supreme Court, which stated the Sacketts were allowed to challenge the EPA’s order to not build on their property. [8] In October, the Court heard arguments in the most recent Sackett v. EPA (2022) case and, with their ruling, will answer the question of which test is appropriate for determining the extent of protection for wetlands under the CWA. [9] Through Sackett, the Court will make a definitive ruling on the definition of “navigable waters” and the processes by which the CWA can protect of other waters throughout the United States.
The Clean Water Act’s historical application and intended purpose confer a certain regulatory power to the EPA and Army Corps, granting these bodies the ability to protect wetlands. This regulatory power supports a potential ruling in favor of the EPA in Sackett. As Justice Jackson continuously emphasized during oral arguments, Congress’s intended purpose for the CWA was to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”. [10] Based upon pure intent and explicit Congressional approval, the EPA has the right to regulate the Sacketts’ property and deny them a building permit, as enabling them to build their property would violate this integrity.
The Clean Water Act was amended in 1977 with the intent to address the deficiencies in the original act, revealed through rigorous scientific research and monitoring. [11] Most relevantly, the 1977 CWA amendments officially added the term “adjacent” to include wetlands removed by berms, dunes, and other similar physical boundaries. [12] This specific application of the CWA gives the EPA authority to step in when defined “adjacent” wetlands are potentially being harmed—this is the reading applicable in this case. Furthermore, with the legal doctrine known as the Rights of Nature Doctrine gaining increased international recognition, there exists the idea that an ecosystem is entitled to the right to defend itself in a court of law against harm. The intent of such a doctrine is to ensure as high of a level of environmental protection as possible for a given ecosystem or habitat. [13] This doctrine, while not the basis of precedent supporting a ruling in favor of the EPA, contributes to the idea that there is a legal standing for the EPA to protect wetlands as part of its protection of WOTUS.
The modern-day acceptable definition of “adjacency” for wetlands would consider those within the Sacketts’ property as “adjacent” to an objectively accepted navigable body of water such as Priest Lake—rendering these wetlands protected under the CWA. Section 1344 (g)(1) of the CWA states that two bodies of water can be adjacent without directly touching each other, as denoted by Section 404 (g). [14] Specifically, adjacent wetlands are defined as “those ‘bordering, contiguous to, or neighboring’ waters of the United States even when they are ‘separated from such waters … by man-made dikes… and the like.” [15] Since 1977, wetlands adjacent to navigable waters have been protected by the CWA regardless of whether they are physically touching the specific navigable water. The Sackett’s property’s relativity to Priest Lake is as follows: a portion of their land has officially been deemed a wetland, of which owners have been notified. [16] The wetlands are surfacely separated from a tributary by a road and said tributary flows directly into Priest Lake; establishing protection under the CWA. [17] Considering these facts and the CWA’s defined protection of adjacent wetlands, those on the Sacketts’ property must be legally protected by the CWA. The only attempt to remove the inclusion of “adjacent” wetlands from the CWA’s protection, the Trump Administration’s Navigable Waters Protection Rule, was halted, and the Biden administration has interpreted WOTUS as consistent with the pre-2015 regulatory regime. [18] Thus, “adjacent wetlands” have been protected under the CWA since the 1977 amendments were officially implemented by Congress.
United States v. Riverside Bayview Homes Inc. (1985) and SWANCC v. United States Army Corps of Engineers (2001) further demonstrate the regulatory power of the EPA provided by the CWA. In short, Riverside Bayview Homes challenged the scope of federal regulatory power in regards to waterways and WOTUS defined by the CWA. This ruling demonstrates existing precedent for regulation of land containing “adjacent wetlands,” since it found the inclusion of wetlands as navigable waters to be reasonable. SWANCC, in a ruling against the EPA and Corps’ interpretation of their jurisdiction, further affirmed the EPA’s regulatory power regarding the protection of WOTUS. Given that the ponds being considered in SWANCC were completely isolated, it clarifies the application of “adjacency” in the Sacketts’ case. The Sacketts’ wetlands, in contrast to those in SWANCC, are not isolated; a significant source of the water from their wetlands emerges into the tributary and through the tributary into Priest Lake. There was not a significant nexus present between the two bodies of water in SWANCC, whereas, in addition to proven adjacency, there exists a significant nexus between the Sacketts’ wetlands and Priest Lake. [19]
Finally, Sackett poses the question of whether the significant nexus test or the line drawing test is the applicable one when deciding wetland adjacency. Due to the ambiguous 4-1-4 SCOTUS voting breakdown of Rapanos v. U.S. (2006), the application of the significant nexus test in the Sacketts’ case is valid. In Rapanos, the Court attempted to answer the question, “Does the phrase ‘waters of the United States’ in the Clean Water Act include a wetland that at least occasionally empties into a tributary of a traditionally navigable water?” [20] Scalia stated that WOTUS can only refer to “relatively permanent, standing, or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” bodies. [21] In contrast, Justice Kennedy’s concurring opinion established the “significant nexus test” to determine protection of adjacent waters. He stated that wetlands did not need to have a continuous surface connection to a continuously flowing body of water in order to receive protection by the CWA and that they must have a “significant nexus” to a traditionally navigable water in order to be protected. [22] The unanswered ruling of Rapanos establishes precedent for future cases to apply the “significant nexus” test if the court wishes. Additionally, Rapanos (2006) further reinforced the regulatory power that Riverside (1985) and SWANCC (2001) affirmed the EPA held; it opened the food for flexible interpretation, which the EPA took.
When the Sacketts’ case first went to Court, the EPA argued that the evidence for receiving protection under the CWA was that wetlands on their property were “adjacent wetlands” to Priest Lake, a navigable body of water. However, when the case came to the Court a second time, the argument was readjusted to state that there was adjacency from the wetlands to the tributary and a “significant nexus” from the tributary to Priest Lake. This decision was made because the adjusted reasoning proved more effective in proving that the EPA has this jurisdiction. [23] Rapanos provided the legal precedent for Fletcher, the lawyer arguing against the Sacketts, to impose the “significant nexus” test for WOTUS in addition to “adjacency.” Moreover, the “continuous surface connection” test the Sacketts’ lawyer has attempted to apply is insufficient and ineffective. It is significantly restrictive and suggests that there must be an explicit continuous surface connection from one body of water to a navigable water for that additional body of water to be protected. [24] This test does not allow for the inclusion of waters scientifically proven to have a connection in some significant way to a navigable body of water that is not surfacely visible and doesn’t allow for the complete implementation of the CWA’s intended purpose. While the ambiguous ruling of Rapanos ultimately means that a party has the right to determine which test they are applying, the “significant nexus” test is a valid application and addresses the oversights of the “continuous surface connection” test.
A ruling in favor of the Sacketts could potentially dismantle a significant portion of the remaining regulatory power of the EPA. It will bring further cases regarding what is defined as “navigable waters” before many courts; with a potentially less regulatory established precedent, it would force courts to rule in favor of the destruction of many currently protected waters of the United States. It is imperative and legally consistent that the Court rule in favor of the EPA in Sackett v. Environmental Protection Agency (2022). Within the scope of interpreting the CWA, “adjacency,” and applying the “significant nexus” test to the Sacketts’ wetlands, the EPA has established jurisdiction to deny them a building permit. With the ruling in West Virginia v. EPA (2022), the EPA was left with far less regulatory power as an agency with the sole purpose of enacting regulations to protect the natural environment. Ultimately, a ruling in favor of the Sacketts will further limit the power of the EPA to act in the way Congress originally intended it to and become a legal disaster for environmental policy for years to come.
Edited by Devon Hunter.
Sources:
[1] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[2] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[3] U.S. Army Corps of Engineers, “33 CFR Part 329: Definition of Navigable Waters of the US,” https://www.nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf.
[4] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[5] Anna Todd, “Sackett v. EPA and the Definition of the Waters of the United States,” Harvard Law Environmental & Energy Law Program, June 24, 2022, https://eelp.law.harvard.edu/2022/06/sackett-v-epa-and-the-definition-of-waters-of-the-united-states/.
[6] Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
[7] Anna Todd, “Sackett v. EPA and the Definition of the Waters of the United States.”
[8] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[9] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[10] Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
[11] “History of the Clean Water Act,” Environmental Protection Agency,
https://www.epa.gov/laws-regulations/history-clean-water-act.; “Clean Water Act of 1977,” Encyclopedia.com, https://www.encyclopedia.com/earth-and-environment/ecology-and-environmentalism/environmental-studies/clean-water-act-1977#:~:text=The%201977%20amendments%2C%20known%20as,source%20pollution%20to%20minimize%20delays.
[12] “Major Themes from the Supreme Court’s Hearing of Sackett v. EPA,” Policy Innovation, October 3, 2022, https://www.policyinnovation.org/blog/major-themes-covered-in-sackett-v-epa.
[13] Tiffany Challe, “The Rights of Nature – Can an Ecosystem Bear Legal Rights?” Columbia Climate School: State of the Planet, April 22, 2021, https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/.
[14] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[15] Rapanos v. United States - 547 U.S. 715 (2006).
[16] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[17] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[18] “Final Rule: The Navigable Waters Protection Rule,” Environmental Protection Agency, https://www.epa.gov/wotus/final-rule-navigable-waters-protection-rule#:~:text=U.S.%20Environmental%20Protection%20Agency.,regulatory%20regime%20until%20further%20notice.
[19] Anna Todd, “Sackett v. EPA and the Definition of the Waters of the United States.”
[20] Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
[21] Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
[22] Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).
[23] Sackett v. Environmental Protection Agency, No. 19-35469 (2022).
[24] Pamela King, “Supreme Court appears to back EPA in WOTUS war,” E&E News, October 3, 2022, https://www.eenews.net/articles/supreme-court-appears-to-back-epa-in-wotus-war/.