For the past 15 years, farmers and landowners have been whiplashed by the EPA’s changing definition of Waters of the United States (“WOTUS”). This includes a frequently litigated area of WOTUS: wetlands. Not quite dry land, not quite the Mississippi, wetlands fall somewhere between the two black and white ends of the spectrum. Because an expensive permit is needed before any construction in a WOTUS, lawsuits often focus on the grey areas between dry land and obvious river.

The Sackett family purchased a parcel of land in Idaho in 2004. The land was near a lake. The Sacketts obtained a local building permit and started filling in soggy ground to stabilize it for construction of their home. The EPA sent them a compliance order, and instructed them to restore the property to its natural state because according to the EPA, the land was a wetland that qualified as a WOTUS subject to federal Clean Water Act (“CWA”) protections. The CWA meant no construction without a federal permit. Failure to comply carried fines of up to $40,000 per day. The Sackett challenged the order. The case went up to the Supreme Court of United States on the question of whether their lawsuit was premature. The Court decided in their favor, ruling the case could move ahead and that the property owners had the right to sue the EPA. The case was sent back to Idaho to continue. The EPA argued, and the district court and appellate court agreed, that the applicable test for whether wetlands are WOTUS is whether there is a “significant nexus” between the wetland and a traditionally navigable water. This test was set forth in 2006 by Justice Kennedy in his opinion in the Rapanos case. The Sacketts argued the question should be whether the wetlands have a “continuous surface connection” to a permanent standing or flowing body of water. This second approach was created by Justice Scalia in the Rapanos case. Because neither Justice wrote for a majority of the Court, the splintered Rapanos decision has confused everyone from law students to farmers.

Now, the Supreme Court has another shot at ruling what wetlands are considered WOTUS and therefore fall under the EPA’s Clean Water Act jurisdiction. The Sacketts suggest a modified version of the Scalia approach, while the EPA contends the Kennedy analysis is appropriate. The timing of this battle is interesting because since Rapanos, we have had different regulatory definitions enacted by the Obama and Trump administrations. President Biden’s administration is working on yet another round of regulatory language. See Corps & EPA, Pre-Publication Notice, Proposed Rule, Revised Definition of “Waters of the United States,” (Nov. 18, 2021). Will the Supreme Court get there first?