In its 2022 Fall Term the United States Supreme Court will again address the scope of the Clean Water Act (CWA). Sackett v. USEPA, a long running dispute between the Sacketts and the USEPA over the reach of the CWA and private property rights is making its second appearance on the Court’s docket.

The Sacketts bought a residential lot near Priest Lake, Idaho in 2004, intending to fill portions of the property to expand the “useable area”. In response USEPA notified the Sacketts that they could not place fill on their property because wetlands on the property fell under the CWA. In response the Sacketts sued USEPA asserting that the CWA did not apply to their property. The case was dismissed on procedural grounds. The Sacketts appealed, first to the Ninth Circuit and then to the Supreme Court. The principal issue presented was whether the Sacketts could bring a civil action under the Administrative Procedures Act (APA) against USEPA. The Supreme Court agreed with the Sacketts, finding that because USEPA’s action constituted a final agency action for which there is no other adequate remedy at law outside the APA the Sacketts’ claim could proceed. The Court remanded the case for further consideration.

On remand the lower court upheld EPA’s determination that the wetlands on the Sackett’s property fell within the criteria defining “Waters of the United States”. Citing the proximity of the wetlands to a navigable body of water and the hydrologic path created by a “shallow subsurface” flow to an adjacent lake the court agreed with USEPA’s interpretation. The Sacketts appealed. The Ninth Circuit adopting the test laid out by Justice Kennedy in Rapanos v. EPA upheld the lower court’s decision. The Sacketts again appealed. The question to be decided by the Supreme Court this time is a substantive one. The Court has been asked to decide 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. §1362(7) and which Rapanos test, Justice Scalia’s or Justice Kennedy’s should control.