SACKETT AND THE CONTINUED ATOMIZATION OF THE CLEAN WATER ACT.

• Date: 22 December 2023
• Author: Adler, Robert W.
• Published date: 22 December 2023

CONTENTS
                INTRODUCTION
                I. BACKGROUND
                 A. Sackett's SCOTUS Predecessors
                 B. The Proposed Unified Theory of CWA Jurisdiction
                 C. The Sackett Litigation
                II. ASSESSING SACKETT THROUGH THE LENS OF THE UNIFIED THEORY
                 A. Justice Alito's Majority Opinion
                 B. The Additional Opinions
                 1. Justice Thomas's Concurring Opinion
                 2. Opinions Concurring in the Judgment
                III. DOES SACKETT PROVIDE THE ELUSIVE CERTAINTY ABOUT THE
                 MEANING OF WOTUS
                CONCLUSION: SACKETT'S ATOMIZED YET UNCERTAIN TRUNCATION OF
                 CWA JURISDICTION
                

INTRODUCTION

When the U.S. Supreme Court issued its long-awaited decision in Sackett v. EPA, (1) Michael and Chantell Sackett won a long battle with federal regulators, allowing them to build a home on their Idaho property free from wetland protection requirements under the Clean Water Act (CWA). (2) This holding may allow thousands of other landowners to avoid CWA restrictions as well, although the scope of the ruling may not be known for a long time. (3) As a result, however, millions of other Americans may lose important protections for water resources and aquatic ecosystems.

The CWA is a long and complex statute, with many interconnected provisions. As such, one would have expected a ruling with such profound implications to analyze all relevant statutory provisions and how they fit together. Instead, each of the four opinions in the case (4) is based largely or entirely on construction of a single word--"adjacent"--taken from an ancillary section of the statute added in 1977. (5) None of the opinions paid more than rhetorical attention to the implications of their analysis for CWA implementation.

In two prior articles, I (and, in one article, a co-author) critiqued the Supreme Court's past "atomization" in its interpretation of the CWA's jurisdictional terms. (6) By "atomization," we meant a tendency to interpret individual statutory words or terms in isolation. (7) Instead, we urged jurists to read the statute's jurisdictional terms in light of the full statutory text, to ensure that the resulting interpretation matched the CWA's operative provisions. (8) Both articles clarified that this distinction draws on the basic tenet of textualism that appropriate statutory construction requires attention to all relevant statutory language. (9)

To encourage a whole statute approach to the CWA's long-standing jurisdictional quagmire, in the last Volume of this journal I proposed a unified theory of Clean Water Act jurisdiction. (10) That theory contended that Congress used a range of water body descriptors for different statutory purposes, with key ramifications for interpreting the breadth and meaning of "waters of the United States" (WOTUS), the pivotal term in Sackett and similar cases. I argued it was inappropriate to interpret the statute's jurisdictional terms, including WOTUS, in isolation from one another, and from other core statutory language.

Although the Sackett decision is certain to be analyzed at greater length by others, this brief follow-up to A Unified Theory evaluates the four opinions in the case through the lens of that theory. Part I provides the necessary background by summarizing the Supreme Court's three earlier major cases regarding the meaning of WOTUS, reiterating briefly the unified theory presented in my earlier article, and providing a short history of the Sackett litigation. Part II evaluates each of the four opinions relative to my analysis of CWA in A Unified Theory. Part III comments briefly on whether the case provides the certainty about the meaning of WOTUS and the scope of the CWA that prior Supreme Court opinions failed to delineate. The Conclusion summarizes how the four opinions in Sackett continue the Court's trend of atomizing the CWA, while failing to provide as much certainty about the scope of WOTUS as might be facially apparent.

I. BACKGROUND

A. Sackett's SCOTUS Predecessors

On three previous occasions, the Supreme Court decided cases regarding the meaning and scope of WOTUS. None resolved the issue clearly and definitively, instead leaving additional issues for subsequent litigation. One key issue in evaluating Sackett, therefore, is whether, correctly or incorrectly, it affords certainty about the meaning of WOTUS, which the prior decisions failed to provide.

In United States v. Riverside Bayview Homes, Inc., (11) the Court ruled that WOTUS included wetlands that abutted on traditional navigable waters, (12) where the wetlands were inundated by groundwater sufficient to support wetlands vegetation. (13) The Court left open, however, the applicability of the CWA to so-called nonadjacent wetlands. (14)

In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC), (15) the Court adjudicated an agency decision to apply the CWA to ponds formed by precipitation into abandoned gravel pits, with no immediate connection to navigable or interstate waters. (16) The U.S. Army Corps of Engineers (ACE) determined that the waters were part of WOTUS because they supported interstate migratory birds. (17) The Court rejected this claim, asserting that it read the word "navigable" out of the statute entirely, (18) and because it stretched the outer limits of Commerce Clause authority, requiring a clearer indication of legislative intent to go that far. (19) Again, this litigation did not definitively resolve the question of WOTUS meaning and scope, because the decision's broad rhetoric exceeded the relatively narrow question posed in the case: whether WOTUS included waters whose only connection to Commerce Clause authority was support of interstate migratory birds. (20)

The uncertainty left after SWANCC prompted considerable additional litigation, leading to the third in the triad of pre-Sackett decisions, Rapanos v. United States. (21) Rapanos consolidated several cases involving discharges that flowed into navigable waters through a range of intermediate channels. (22) Rather than clarifying the longstanding WOTUS dispute, this case complicated matters further by generating a confusing 4-1-4 split. The plurality opinion written by Justice Scalia would have ruled that WOTUS includes only "relatively permanent, standing or continuously flowing bodies of water" (23) and only wetlands "with a continuous surface connection to bodies that are [WOTUS] in their own right." (24) Justice Kennedy's opinion concurring in the judgment, (25) which the majority of lower courts treated as the controlling opinion because it was decided on the narrowest grounds, (26) asserted that WOTUS includes waters with a "significant nexus" to traditional navigable waters. (27)

B. The Proposed Unified Theory of CWA Jurisdiction

In A Unified Theory, I characterized and critiqued Supreme Court opinions in each of these three prior cases. (28) Part of this analysis critiqued the Court's tendency to base its opinion on individual statutory terms and phrases without considering how they fit into the overall statutory text and scheme, or "atomization," of the statute. In addition, I posited a "unified theory" to explain not only the proper meaning of WOTUS, but also its relationship to other "scope terms" Congress used in the CWA. (29)

I will not repeat that analysis here fully, but it forms the backdrop for the following assessment of Sackett. The unified theory posits that the term "WOTUS" nests within the Act's broadest umbrella term, "the Nation's waters," and that Congress's textual distinction between "WOTUS" and "navigable WOTUS" means that WOTUS transcends traditional navigable waters. (30) Moreover, to the extent that "waters" is undefined in the statute, statutory context and the need to fulfill all CWA goals and objectives suggest that it is used in its scientific sense. (31) Therefore, the two expert agencies charged with the Act's implementation have discretion to define the term in ways that effectuate those goals and objectives, i.e., that incorporate all hydrological components of aquatic ecosystems that support traditional navigable waters. (32)

C. The Sackett Litigation

Sackett involved what the Ninth Circuit characterized as "a soggy residential lot" purchased by the Sacketts near the shore of Priest Lake in Idaho, on which they wanted to build a residence. (33) After the Sacketts began to fill the lot in preparation for construction, the U.S. Environmental Protection Agency (EPA) issued an administrative compliance order to cease the work and to remove the fill from what the agency characterized as wetlands protected under the CWA. (34) The Sacketts sued to challenge EPA's jurisdiction. (35) Ultimately, the district court and the Ninth Circuit affirmed EPA's assertion of jurisdiction. (36)

The Sacketts' property was within 300 feet of Priest Lake, one of the largest lakes in Idaho, but was separated from the lake by a road and a row of other private parcels with houses. (37) The wetlands on the property had no direct surface connection to the lake or to waters that flowed into the lake. Rather, across the street from the Sacketts' property sits a large fen wetland complex that flows into tributaries to the lake. (38) The wetlands themselves are not a traditional navigable water, nor do they flow directly into or abut a traditional navigable water. Rather, they connect to Priest Lake hydrologically through groundwater, a non-navigable tributary, and a wetlands complex that abuts the lake. (39)

The district court rejected the Sacketts' claim that EPA's compliance order was arbitrary and capricious, and granted summary judgment to EPA. (40) The Ninth Circuit affirmed, (41) finding that the wetlands on the property were "adjacent" to non-navigable tributaries to Priest Lake, which in turn was a navigable water, for purposes of the applicable regulations. (42) It also held that, under the applicable regulation, artificial barriers such as roads did not defeat this finding of adjacency. (43) Finally, expressly deferring to the agency's scientific expertise, it agreed with...