On January 24, 2022, the U.S. Supreme Court granted a petition for a writ of certiorari in Sackett v. EPA (case no. 21-454) regarding the question,“[w]hether 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).”

The applicable legal standard for determining whether a particular wetland or other waterbody constitutes a “water of the United States” (WOTUS) under the Clean Water Act has been murky for over 15 years. Rulemakings under the Obama and Trump administrations took varying approaches, and the Biden administration is currently following suit by developing its own rulemaking to define WOTUS. The constantly changing definition has created significant confusion and uncertainty for the regulated community and has been compounded by decisions from the courts stemming from ever-present litigation of the same topic.

Since 2006, federal courts and agencies have been following the U.S. Supreme Court decision in Rapanos v. United States (Case No. 547 U.S. 715) that attempted to set forth guidance on how to interpret what waters constitute WOTUS. Rapanos was a plurality opinion, and the test set forth by concurring Justice Anthony Kennedy has been used by most courts and agencies since 2006. However, circuits have followed different approaches regarding what amount of weight to give to Justice Kennedy’s test, as opposed to a competing, far more narrow test set forth by Justice Antonin Scalia. Justice Kennedy’s test focused on whether the water in question had a “significant nexus” to traditional navigable waters. Justice Scalia’s test focused on “relatively permanent” waters connected to traditional navigable waters and those with a “continuous surface connection.”

The Ninth Circuit in Sackett upheld the U.S. Environmental Protection Agency’s finding that the wetland in question constituted a WOTUS and was subject to Clean Water Act regulation, based on the test set forth by Justice Kennedy in Rapanos v. United States. It is expected that briefing of the case will begin in early 2022, and the U.S. Supreme Court will hear the case in its next term, which will begins in October 2022.

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