May 26, 2022

Volume XII, Number 146

Advertisement
Advertisement

May 26, 2022

Subscribe to Latest Legal News and Analysis

May 25, 2022

Subscribe to Latest Legal News and Analysis

May 24, 2022

Subscribe to Latest Legal News and Analysis

May 23, 2022

Subscribe to Latest Legal News and Analysis

U.S. Supreme Court Positioned to Finally Resolve Scope of Federal Jurisdiction Over Remote Wetlands

On January 24, 2022, the U.S. Supreme Court (SCOTUS) granted review of Sackett v. EPA, apparently with the sole purpose of deciding once and for all “the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.” Given the current composition of the Supreme Court Justices and that Sackett originates from the Ninth Circuit—an appellate court with a long history of SCOTUS reversals in environmental law cases—the stage could be set for the Court to constrain assertions of federal jurisdiction over remote and isolated wetlands.

The Sackett case arises from a long-running dispute over whether federal Clean Water Act (CWA) jurisdiction extends to wetlands occurring on the Sackett family’s rural Idaho homesite. Nearly ten years ago, the Supreme Court reversed the Ninth Circuit, unanimously holding that the Sackett family had the right to challenge a compliance order from the U.S. Environmental Protection Agency (EPA) directing them to restore wetlands they had filled on the property when building their home.

Having won that battle, the Sacketts challenged the basis for EPA’s compliance order, arguing that the wetlands were not subject to federal jurisdiction under the CWA. Specifically, the Sacketts assert that EPA and the Army Corps inappropriately asserted jurisdiction over their wetlands by using Justice Kennedy’s “significant nexus” test from Rapanos v. United States, and the agencies instead should have relied on Justice Scalia’s narrower jurisdictional test from Rapanos. Justice Scalia’s test provides that wetlands must have a “continuous surface connection” to a “relatively permanent” “water of the United States” for CWA jurisdiction to apply. But the Ninth Circuit again upheld the agencies’ position, the Sacketts again sought relief from the Supreme Court, and the Supreme Court again agreed to hear the case.

The Supreme Court’s second grant of certiorari to the Sacketts suggests that the Justices may be poised to make a definitive ruling on which jurisdictional test should be used when evaluating whether wetlands are considered “waters of the U.S.” Since the Court issued its splintered 4-1-4 Rapanos decision in 2006, the scope of the CWA’s jurisdiction over wetlands and other waterbodies has been the subject of repeated rulemakings and litigation, all against the backdrop of Rapanos’ two competing tests. As a result, if at least five Justices in the new Sackett case can agree on the appropriate jurisdictional test to apply, the years of confusion, inconsistency, and uncertainty that have dominated CWA implementation in the wake of Rapanos could finally end.

In addition, the outcome of this new Sackett case is almost certain to affect the new “durable” regulatory definition of “waters of the United States” that EPA and the Corps are currently developing. The Supreme Court’s decision could even moot that rulemaking, as only Congress could then change the law by amending the CWA—a fix that has eluded Congress for decades, and is even more unlikely in the present political environment.

The Sackett case, therefore, provides a unique opportunity for project proponents to highlight the regulatory uncertainty and far-reaching implications of the agencies’ reliance on the intensively fact-specific “significant nexus” test, and the corresponding benefits of a simpler test. The briefing will likely take place in early 2022. Amicus briefs will be due only seven days after the supported party files its brief. Oral argument will likely be held in the fall of 2022, with a decision coming as soon as the end of this year or in early 2023.

© 2022 Beveridge & Diamond PC National Law Review, Volume XII, Number 25
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

202-789-6028
Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies...

202-789-6078
Nicole M. Bayne Washington D.C. Associate Attorney Environment Natural Resources Beveridge & Diamond PC
Associate

Nicole advises clients on litigation and regulatory issues with a focus on natural resources, agriculture, and the Endangered Species Act.

Nicole focuses her practice on environmental regulatory law and litigation, federal permitting and project planning, complex legislative analysis. She has experience with the Agricultural Improvement Act of 2018, the Endangered Species Act, and Federal Acquisition Regulations for federal government contracting clients.

Prior to joining Beveridge & Diamond, Nicole practiced as an...

202-789-6068
Associate

Jonas specializes in regulatory compliance and civil litigation, with a special focus on the CWA, ESA, and natural resources management.

Jonas Reagan advises clients on regulatory compliance, administrative enforcement actions, and civil litigation under state and federal regulations including the Clean Water Act, Endangered Species Act, Administrative Procedure Act, Pipeline Safety Act, General Mining Act of 1872, and Federal Land Management Policy Act.

Before joining Beveridge & Diamond, Jonas served as an...

202-789-6060
Advertisement
Advertisement
Advertisement