MY OWN PRIVATE IDAHO WETLAND: WHAT WILL THE COURT DO WITH THE SACKETT CASE.

• Author: Parenteau, Patrick
• Position: The Clean Water Act at 50: Requiem or Resurrection?

1. Background: How Did It Come to This? 375 II. What Happens Now? 379 III. Best Case: A Narrow, Fact-Based Decision 380 IV. Worst Case: Adoption of the Rapanos Plurality Opinion 384 V. Compromise: A Maui Multi-Factor Decision 387 VI. The Importance of Headwater Streams and Wetlands 389 VII. Conclusion 390 I. BACKGROUND: HOW DID IT COME TO THIS?

   Much to the surprise of legal pundits, the U.S. Supreme Court has agreed to review the decision of the Ninth Circuit (1) finding that the wetland on Michael and Chantelle Sackett's property is covered by the Clean Water Act (CWA) (2) and therefore a [section] 404 permit is required to build their long-desired dream home next to Priest Lake in Idaho. (3) In accordance with the controlling authority in the Ninth Circuit, and courts of appeal across the country, the Sackett panel applied the "significant nexus" test from Justice Kennedy's concurring opinion in the famously fractured decision in Rapanos v. United States. (4)

   As framed in the petition for certiorari (prepared by the Pacific Legal Foundation), the question presented was: "Should Rapanos be revisited to adopt the plurality's test for wetlands jurisdiction under the Clean Water Act?" (5) The Court reframed the question more generally as: "Whether 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. [section] 1362(7)." (6) The reframing could signal that the choice is not simply "Scalia or Kennedy"--neither of whom remain on the Court--but conventional wisdom suggests an outcome much closer to the former than the latter.

   The grant of certiorari is surprising for several reasons. First, the case does not present any constitutional issues. Petitioners have alleged neither a violation of their property rights under the Fifth Amendment nor that the case presents a serious question regarding Congress's exercise of its Commerce Clause authority. (7) Rather, the case presents a seemingly straightforward question regarding the term "navigable waters" as defined to mean the "waters of the United States, including the territorial seas" (WOTUS). (8) WOTUS has been the subject of many administrative interpretations over the years. As discussed below, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) are currently using the "pre-2015" definition with some additional guidance. (9)

   The Supreme Court has wrestled with this question three times. In United States v. Riverside Bayview Homes Inc. (Riverside Bayview) a unanimous Court ruled that a wetland "adjacent to" but not directly abutting a navigable tributary of Lake Saint Clair was jurisdictional under the CWA. (10) In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), a divided Court (5-4) ruled that the Corps's use of the so-called "Migratory Bird Rule" to regulate a "nonnavigable, isolated, intrastate" waterbody (an abandoned sand and gravel pit) exceeded its statutory authority. (11) In Rapanos, the Court was unable to agree on a test for determining whether the wetland in question--which was adjacent to a ditch many miles from the nearest navigable river--was jurisdictional, and simply remanded the case for further developments. (12)

   Second, there is no circuit split on which test is controlling under Rapanos. (13) Every court of appeals that has addressed the question, has held that EPA and the Corps may assert CWA jurisdiction over wetlands that satisfy the "significant nexus" test in Justice Kennedy's concurring opinion, and the Supreme Court has repeatedly declined to review those decisions. (14) No circuit court has ruled that the plurality opinion in Rapanos is controlling.

   Thus, under the current state of the law, the only question is whether the test set forth in Justice Scalia's plurality opinion provides an additional basis for asserting regulatory authority over wetlands and other waters in those circumstances where Justice Kennedy's test is not satisfied. Since petitioners do not dispute that Justice Kennedy's test is satisfied, there is no conflict in the lower courts requiring Supreme Court intervention. (15)

   Third, EPA has withdrawn the compliance order issued against the Sacketts in 2007 that ignited this controversy, and the Biden Administration has made it clear in court filings that it has no plan to initiate a new enforcement action. (16) Notwithstanding this representation, the Ninth Circuit ruled that the case was not moot because EPA might change its mind, but that is a slim read on which to rest Supreme Court review at this juncture.

   Finally, and most importantly, EPA and the Corps are in the midst of a two-step rulemaking (17) to develop a revised definition of the vexed term "waters of the United States" to replace the "Navigable Waters Protection Rule" (NWPR) (18) adopted by the previous administration. Two different District Courts have vacated and remanded the NWPR. (19) In compliance with those decisions, EPA and the Corps have announced that they will not use the NWPR in making jurisdictional determinations, pending the outcome of their rulemaking. (20)

   In their Phase I rulemaking, the agencies have proposed to restore the pre-2015 definition of WOTUS, updated to reflect consideration of Supreme Court decisions in SWANCC and Rapanos. (21) The agencies believe this longstanding approach would support a stable implementation of WOTUS while the agencies continue developing a new rule in consultation with states, tribes, local governments, and a broad array of other stakeholders. (22) The proposed rule was published in the Federal Register on December 7, 2021. (23) The public comment period closed on February 7, 2022.24

   The Court will not hear oral arguments until the Fall term. (25) Despite pressure from some members of Congress and environmental groups to publish a proposed rule before the Court hears argument in October, the agencies have opted to delay publication until November 2023. (26) Though this may be viewed as a prudent move to await the outcome in Sackett II, it could prove to be a mistake.

   The agencies would be in a stronger position with a carefully crafted proposal for a revised definition of WOTUS, rather than trying to defend the messy status quo. The Court needs to see something more concrete than the current placeholder rule, which merely reinstates the 1986 definition with a vague nod to the Court's decisions in SWANCC and Rapanos.

   There is no chance the Court is going to simply uphold the Ninth Circuit. The only hope, and it is a slim one, for a delay to allow the agencies to complete their rulemaking, lies in convincing the Court that the agencies are engaged in a serious effort to redraw the boundaries of federal jurisdiction under the CWA. This is surely a difficult task, and one that entails shrinking the historic reach of the CWA, or in other words, triage.

2. WHAT HAPPENS NOW?

   With only the factual context of the Sackett case before it and no final revised WOTUS rule to review, what will the Court do? With a commanding 6-3 conservative majority, it is safe to assume that the Court will overturn the Ninth Circuit and perhaps scrap the significant nexus test altogether. But then what? How far will the Court go in limiting the agencies' discretion to craft a new rule?

   The answer to that question will depend in part on who is assigned to write the opinion. As Professor Richard Lazarus has written, there are established patterns for how opinions are assigned. (27) Assuming Chief Justice Roberts is in the majority, he could take the opinion himself, but because there are other big cases on the docket (like the Harvard affirmative action case), it is more likely that he will assign it to another Justice. (28) The most likely candidate is Justice Alito, who is now second in seniority behind Justice Thomas, and who wrote a concurring opinion in the original Sackett case. (29) He also dissented in County of Maui v. Hawai 'i Wildlife Fund (Maui), discussed further below, which represents a rare win for the environmental side in a CWA case. (30)

   There are many possible outcomes, but it may be helpful to group them under three general headings, as discussed below. The options range from a best-case, narrow decision based on the unique facts in Sackett, to a worst-case, wholesale adoption of the plurality opinion in Rapanos, with a possible compromise based on the multi-factor test adopted in Maui.

   The Article concludes with some observations on what the various outcomes might mean for the future of the CWA.

3. BEST CASE: A NARROW, FACT-BASED DECISION

   A brief chronology is helpful to understand the current posture of the case. Petitioners purchased the property in 2004. (31) In 2007, petitioners trucked in a load of gravel and sand and began filling the wetlands. (32) The Sacketts hired their own wetlands consultant who told them that the "site is part of a wetland," that it "is not an isolated wetland" but rather "joins a wetland" across the road, and that petitioners should cease construction activity and consult further with the Corps. (33) For unknown reasons, the Sacketts did not act on this advice. (34)

   EPA officers conducted a site investigation on May 3, 2007, advised the Sacketts that the property contained jurisdictional wetlands, and directed the Sacketts to stop work on the home until they obtained a permit from the Corps. (35) In November 2007, EPA issued an administrative compliance order finding that petitioners had violated the CWA by discharging fill material into the wetlands without a permit, and directed petitioners to remove the fill material and restore the wetlands. (36)

   In 2008, petitioners brought an action under [section] 706(2) of the Administrative Procedure Act (APA), contending that EPA's initial administrative compliance order was "premised on an erroneous assertion of jurisdiction under the CWA." (37) Following a long line...