The Hill: Supreme Court should revisit its 2006 navigable waters decision

Nearly 15 years ago, the efforts of Chantell and Mike Sackett to build their family home in a residential neighborhood of Priest Lake, Idaho, were put on indefinite hold. That is because the Environmental Protection Agency (EPA) demanded, on pain of immense monetary penalties, that the Sacketts first obtain a time-consuming and costly Clean Water Act permit from the Army Corps of Engineers before building their home. That arduous course of action was required because, in EPA’s view, the Sacketts’ lot contained wetlands that qualify as “navigable waters” subject to Clean Water Act regulation.

The Sacketts’ ordeal is representative of all that has gone wrong with the implementation of the Clean Water Act since the Supreme Court attempted, in its fractured 2006 ruling in Rapanos v. United States, to rein in the agencies’ expansive interpretation of the act’s scope.

In Rapanos, the court held that the Clean Water Act does not regulate all wetlands, but no opinion explaining why that is so garnered a majority of the court. A plurality opinion, authored by Justice Antonin Scalia and joined by three other justices, argued that only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated. A concurring opinion by Justice Anthony Kennedy advanced a different, much broader test, allowing for regulation of wetlands regardless of any surface connection, as long as the wetlands bear an (undefined) “significant nexus” with traditional navigable waters.

The court’s ruling in Rapanos has led to much confusion. Neither the lower courts, nor the agencies, nor the regulated public can agree on even what the rule of Rapanos is — much less agree on how to apply any such rule efficiently and consistently.

Within a year of Rapanos, the lower courts were divided over how to interpret the decision. Some have held that the decision requires landowners such as the Sacketts to disprove jurisdiction under just the “significant nexus” test set forth in Justice Kennedy’s concurring Rapanos opinion. Others have held that landowners must negate both that standard and the test set forth in Justice Scalia’s plurality opinion. And others have suggested or held that landowners must disprove both, as well as the test from Justice John Paul Stevens’s dissenting opinion.

Despite the passage of multiple presidential administrations since the ruling, the agencies have had no better success figuring out what Rapanos means. The Bush administration tried informal guidance documents adopting an amalgam test, combining parts of the “significant nexus” standard with parts of the Rapanos plurality test. The Obama administration tried a formal rulemaking to elaborate on just “significant nexus.” Most recently, the Trump administration tried another rulemaking, looking primarily to the Rapanos plurality opinion. Each effort has failed to produce a workable rule that would satisfy the lower courts’ conflicting views of what Rapanos allows.

And finally, there is the plight of hapless landowners who own soggy property. Such property owners rarely, if ever, can afford the hundreds of thousands of dollars for consultants and attorneys necessary to have a fighting chance at disproving jurisdiction under Rapanos and getting that determination to hold up in court.

Even if they do have the resources to defend their position, property owners are reluctant to proceed without permits given the crushing consequences — including, potentially, tens of thousands of dollars per day in civil penalties and even criminal prosecution — if their assessment of jurisdiction proves to be wrong and EPA drops its enforcement hammer. Thus, ordinary citizens seeking to make reasonable use of their property are, as Justice Samuel Alito has put it, left “with little practical alternative but to dance to the EPA’s tune.”

Fifteen years of fruitless confusion, conflict and litigation is enough. If the court grants the Sacketts’ recently filed cert petition, the Supreme Court will have the opportunity to chart a better course for the Clean Water Act by articulating a clear and easily administered rule for wetlands jurisdiction, using the surface-water-connection test set forth in the Rapanos plurality opinion. Doing so would provide much-needed guidance to the lower courts and the agencies, which already have announced their intent to try a third rulemaking. But most importantly, it would help landowners such as the Sacketts who, as the chief justice noted in his concurrence in Rapanos, are otherwise left “to feel their way on a case-by-case basis.”

This op-ed was originally published by The Hill on September 27, 2021.