Petition for Writ of Certiorari — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. ____________

In The

Supreme Court of the United States

____________________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, Administrator,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

930 G Street

San Francisco, CA 94101

Sacramento, CA 95814

Telephone: (415) 402-2707 Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners

i

QUESTION PRESENTED

Petitioners Michael and Chantell Sackett own a

vacant lot in a mostly built-out residential subdivision

near Priest Lake, Idaho. The lot has no surface water

connection to any body of water. In April, 2007, with

local permits in hand, the Sacketts began building a

family home. But later that year, Respondent

Environmental Protection Agency sent them an

administrative compliance order determining that

their home construction violated the Clean Water Act

because their lot contains wetlands that qualify as

regulated “navigable waters.”

In Rapanos v. United States, 547 U.S. 715 (2006),

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 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 Kennedy advanced a

different and much broader test, allowing for

regulation of wetlands regardless of any surface

connection, so long as the wetlands bear an

(undefined) “significant nexus” with traditional

navigable waters. Below, the Ninth Circuit employed

Justice Kennedy’s “significant nexus” test to uphold

EPA’s authority over the Sacketts’ homesite.

The question presented is:

Should Rapanos be revisited to adopt the

plurality’s test for wetlands jurisdiction under the

Clean Water Act?

ii

LIST OF ALL PARTIES

The Petitioners are Michael and Chantell Sackett.

The Respondents are the Environmental Protection

Agency and its Administrator, Michael S. Regan.

STATEMENT OF RELATED CASES

The proceedings identified below are directly

related to the above-captioned case in this Court.

Sackett v. EPA, No. 08-cv-185-N-EJL, 2008 WL

3286801 (D. Idaho Aug. 7, 2008).

Sackett v. EPA, No. 08-35854, 622 F.3d 1139 (9th

Cir. Sept. 17, 2010).

Sackett v. EPA, 566 U.S. 120 (March 21, 2012).

Sackett v. EPA, No. 2:08-cv-00185-EJL, 2019 WL

13026870 (D. Idaho Mar. 31, 2019).

Sackett v. EPA, No. 19-35469, 8 F.4th 1075 (9th

Cir. Aug. 16, 2021).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

LIST OF ALL PARTIES ............................................. ii

STATEMENT OF RELATED CASES ....................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY AND REGULATORY

PROVISIONS AT ISSUE ....................................... 1

INTRODUCTION ....................................................... 3

STATEMENT OF THE CASE.................................... 7

A. The Sacketts’ home-building project

runs into the Clean Water Act ...................... 7

B. The Sacketts’ challenge to EPA and the

Corps’ purported authority over their

home-building project is rebuffed by the

lower courts ................................................. 14

1. The lower courts reject, but this

Court affirms, the Sacketts’ right

to seek judicial review of whether

their home-building project requires

a Clean Water Act permit ...................... 14

iv

2. On remand, the district court rules

for EPA on the merits, and the

Ninth Circuit affirms, relying

upon the “significant nexus” test

from Justice Kennedy’s Rapanos

concurrence............................................. 15

REASONS FOR GRANTING CERTIORARI........... 17

I.

The lower courts, the agencies, and the

regulated public are at sea as to the

scope of the Clean Water Act ......................... 17

A. For almost as long as Rapanos has

been the law, the lower courts have

been in conflict over the rule (or rules)

that the decision establishes for

determining whether land is subject

to Clean Water Act regulation .................... 17

B. Despite several years of operating under

guidance documents, and then two

immense notice-and-comment

rulemakings, the agencies have

failed to articulate a workable and

legally sound interpretation of Rapanos .... 21

C. The confusion as to which jurisdictional

test or tests Rapanos establishes,

coupled with the great indeterminacy

of the significant nexus test, imposes

extraordinary costs and potentially

crushing penalties on ordinary

Americans engaged in everyday land-use .. 24

v

II.

The Sacketts’ case provides an excellent

vehicle for this Court to end the Rapanos

confusion and to articulate a clear and

easily administered rule for determining

the Clean Water Act’s wetlands

jurisdiction...................................................... 29

CONCLUSION.......................................................... 32

APPENDIX

Opinion, U.S. Court of Appeals for the

Ninth Circuit, filed August 16, 2021 ...................... A-1

Order, U.S. District Court for the District

of Idaho, filed March 31, 2019 ................................ B-1

Approved Jurisdictional Determination Form,

U.S. Army Corps of Engineers, for the

Sackett Site, dated May 15, 2008 ........................... C-1

Amended Compliance Order, United States

Environmental Protection Agency,

dated May 15, 2008 ................................................. D-1

Satellite Photo of Sackett Site................................ E-1

vi

TABLE OF AUTHORITIES

Cases

Colorado v. U.S. EPA,

445 F. Supp. 3d 1295 (D. Colo. 2020),

rev’d and vacated on other grounds,

989 F.3d 874 (10th Cir. 2021) ....................... 20, 23

The Daniel Ball,

77 U.S. (10 Wall.) 557 (1870) .............................. 10

In re EPA & Dep’t of Defense Final Rule,

803 F.3d 804 (6th Cir. 2015), vacated on other

grounds, In re U.S. Dep’t of Defense,

713 Fed. Appx. 489 (6th Cir. 2018) ..................... 22

Georgia v. Wheeler,

418 F. Supp. 3d 1336 (S.D. Ga. 2019) ................. 22

Gibson v. Am. Cyanamid Co.,

760 F.3d 600 (7th Cir. 2014) ............................... 19

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ................................................. 9

Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs,

782 F.3d 994 (8th Cir. 2015) ............................... 26

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ......................................... 28

Marks v. United States,

430 U.S. 188 (1977) ............................................. 13

vii

N. Cal. River Watch v.

City of Healdsburg,

496 F.3d 993 (9th Cir. 2007) ............................... 18

N. Cal. River Watch v. Wilcox,

633 F.3d 766 (9th Cir. 2011) .......................... 18-19

Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

138 S. Ct. 617 (2018) ........................................... 28

Natural Resources Defense Council, Inc. v.

Callaway,

392 F. Supp. 685 (D.D.C. 1975)........................... 10

North Dakota v. U.S. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015) ................... 22

Orchard Hill Building Company v.

U.S. Army Corps of Eng’rs,

893 F.3d 1017 (7th Cir. 2018) ............................. 25

Pascua Yaqui Tribe v. U.S. EPA,

No. CV-20-00266-TUC-RM,

2021 WL 3855977 (D. Ariz. Aug. 30, 2021) ........ 23

Precon Dev. Corp., Inc. v.

U.S. Army Corps of Eng’rs,

633 F.3d 278 (4th Cir. 2011) ............................... 18

Rapanos v. United States,

547 U.S. 715 (2006) ................ 4, 6, 9-13, 22, 24, 27

Robertson, Pet’n for Writ of Cert., No. 18–609,

2018 WL 5978094 (U.S. Nov. 7, 2018) ................ 20

Robertson v. United States,

139 S. Ct. 1543 (2019) ......................................... 20

viii

Sackett v. EPA,

566 U.S. 120 (2012) .......... 4–5, 7, 14–15, 24, 29, 31

Sackett v. U.S. EPA,

622 F.3d 1139 (9th Cir. 2010) ............................. 15

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

531 U.S. 159 (2001) ............................................. 11

Texas v. U.S. EPA,

389 F. Supp. 3d 497 (S.D. Tex. 2019).................. 22

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) ......................5, 8, 24, 27–28

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009) ............................... 18

United States v. Chevron Pipe Line Co.,

437 F. Supp. 2d 605 (N.D. Tex. 2006) ................. 25

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009) ............................... 18

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011) ................................. 18

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006) ......................... 18–19

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) .................................. 17

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008) ............................... 18

ix

United States v. Moses,

496 F.3d 984 (9th Cir. 2007) ............................... 20

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ............................................. 11

United States v. Robertson,

875 F.3d 1281 (9th Cir. 2017),

vacated, 139 S. Ct. 1543 (2019) ........................... 20

United States v. Robertson,

No. CR 15-07-H-DWM, 2015 WL

7720480 (D. Mont. Nov. 30, 2015),

vacated on other grounds,

773 Fed. Appx. 391 (9th Cir. 2019) ..................... 20

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) ........................... 18

United States v. Robison,

521 F. Supp. 2d 1247 (N.D. Ala. 2007) .......... 19-20

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

33 U.S.C. §§ 1251–1388 .............................................. 8

33 U.S.C. § 1311(a) ..................................................... 8

33 U.S.C. § 1342(a) ..................................................... 8

33 U.S.C. § 1342(b) ..................................................... 8

33 U.S.C. § 1344(a) ..................................................... 8

33 U.S.C. § 1344(g) ..................................................... 8

x

33 U.S.C. § 1362(7) ................................................. 1, 8

33 U.S.C. § 1362(8) ..................................................... 8

33 U.S.C. § 1362(12) ................................................... 8

33 U.S.C. § 1365 ........................................................ 29

Regulations

33 C.F.R. § 209.120(d)(1) (1975) ............................... 10

33 C.F.R. § 328.3(a)(1), (a)(3), (a)(5),

(a)(7) (2004) .......................................................... 11

33 C.F.R. § 328.3(a) (2008) ..................................... 1, 2

33 C.F.R. § 328.3(c) (2004)........................................ 11

33 C.F.R. § 328.3(c) (2008)...................................... 1, 3

40 C.F.R. § 122.2 (2008)............................................ 17

40 C.F.R. § 125.1(o)(2), (4), (6) (1974) ................... 9-10

40 C.F.R. § 230.3(s) (2008)........................................ 17

Other Authorities

38 Fed. Reg. 13,528 (May 22, 1973) ........................... 9

39 Fed. Reg. 12,115 (Apr. 3, 1974) ....................... 9–10

40 Fed. Reg. 41,292 (Sept. 5, 1975) .......................... 10

42 Fed. Reg. 37,122 (July 19, 1977) ......................... 10

51 Fed. Reg. 41,206 (Nov. 13, 1986) ......................... 11

xi

65 Fed. Reg. 12,818 (Mar. 9, 2000)........................... 11

80 Fed. Reg. 37,054 (June 29, 2015) .................. 21–22

84 Fed. Reg. 56,626 (Oct. 22, 2019) .......................... 22

85 Fed. Reg. 22,250 (Apr. 21, 2020) ......................... 23

Bickett, Samuel P. Bickett, The Illusion

of Substance: Why Rapanos v. United

States and Its Resulting Regulatory

Guidance Do Not Significantly Limit

Federal Regulation of Wetlands,

86 N.C. L. Rev. 1032 (2008) ................................ 26

Boxer, Daniel E., Every Pond and

Puddle—or, How Far Can the Army

Corps Stretch the Intent of Congress,

9 Nat. Resources Law. 467 (1976) ...................... 10

Colburn, Jamison E., Don’t Go in the Water:

On Pathological Jurisdiction Splitting,

39 Stan. Envtl. L.J. 3 (2019) ............................... 21

Colburn, Jamison E., Governing the Gradient:

Clarity and Discretion at the Water’s Edge,

62 Villanova L. Rev. 81 (2017) ............................ 22

Dialogue, The Impact of Justice

Kennedy and the Effect of His

Retirement, 48 Envtl. L. Rep. News

& Analysis 10863 (2018) ................................ 25-26

xii

EPA and Army Corps, Memorandum re:

Clean Water Act Jurisdiction

Following the U.S. Supreme Court’s

Decision in Rapanos v. United States

& Carabell v. United States

(Dec. 2008), available at

https://perma.cc/JNN9-HKEG ............................ 21

EPA, Current Implementation of Waters

of the United States, at

https://www.epa.gov/wotus/currentimplementation-waters-united-states

(last visited Sept. 18, 2021) ................................ 6-7

EPA, Intention to Revise the Definition

of “Waters of the United States”

(June 9, 2021), available at

https://www.epa.gov/wotus/intentionrevise-definition-waters-unitedstates ...................................................................... 6

Johnson, Stephen M., Killing WOTUS 2015: Why

Three Rulemakings May Not Be Enough,

64 St. Louis Univ. L.J. 373 (2020) ...................... 22

Libesman, Lawrence R., et al.,

Rapanos v. United States: Searching for a

Significant Nexus Using Proximate

Causation and Foreseeability Principles, 40

Envtl. L. Rep. News & Analysis 11242 (2010) ... 25

Mandelker, Daniel R., Practicable

Alternatives for Wetlands Development

Under the Clean Water Act, 48 Envtl. L.

Rep. News & Analysis 10894 (2018) .................. 8-9

xiii

Mank, Bradford C., Rapanos—Will Justice

Kennedy’s Significant Nexus Test Provide

a Workable Standard for Lower Courts,

Regulators, and Developers?,

40 Ind. L. Rev. 291 (2007) ................................... 27

Parish, Gary E. & Morgan, Michael,

History, Practice and Emerging

Problems of Wetlands Regulation:

Reconsidering Section 404 of the

Clean Water Act,

17 Land & Water L. Rev. 43 (1982) .................... 10

Philbrick, Thomas J., From Asahi to

WOTUS: Why “Significant Nexus”

Falls Short, 9 LSU J. Energy L. &

Resources 165 (2021) ........................................... 26

Pltfs.-Apps.’ Opp’n to Mot. to Dismiss the Appeal

as Moot, Doc. No. 23-1, Case No. 19-35469

(filed Apr. 9, 2020) ............................................... 30

Ruhl, J.B.,

Proving the Rapanos Significant Nexus,

33 Nat. Res. & Env't 51 (2018)............................ 25

Transcript of Oral Argument, Hawkes,

136 S. Ct. 1807 ..................................................... 27

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Michael and Chantell Sackett

respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW

The panel opinion of the Ninth Circuit is reported

at 8 F.4th 1075, and is reproduced in the Appendix

beginning at A-1. The opinion of the United States

District Court for the District of Idaho is not reported

but is available at 2019 WL 13026870, and is

reproduced in the Appendix beginning at B-1.

JURISDICTION

The date of the decision sought to be reviewed is

August 16, 2021. Jurisdiction is conferred under 28

U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS AT ISSUE

•

33 U.S.C. § 1362(7): “The term ‘navigable

waters’ means the waters of the United States,

including the territorial seas.”

•

33 C.F.R. § 328.3(a), (c) (2008):

(a) The term waters of the United States

means

(1) All waters which are currently

used, or were used in the past, or may be

susceptible to use in interstate or foreign

2

commerce, including all waters which are

subject to the ebb and flow of the tide;

(2) All interstate waters including

interstate wetlands;

(3) All other waters such as intrastate

lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, wetlands,

sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation

or destruction of which could affect interstate

or foreign commerce including any such

waters:

(i) Which are or could be used by

interstate or foreign travelers for recreational

or other purposes; or

(ii) From which fish or shellfish

are or could be taken and sold in interstate or

foreign commerce; or

(iii) Which are used or could be

used for industrial purpose by industries in

interstate commerce;

(4) All impoundments of waters

otherwise defined as waters of the United

States under the definition;

(5) Tributaries of waters identified in

paragraphs (a) (1) through (4) of this section;

(6)

The territorial seas;

3

(7) Wetlands adjacent to waters

(other than waters that are themselves

wetlands) identified in paragraphs (a) (1)

through (6) of this section.

(8) Waters of the United States do not

include

prior

converted

cropland.

Notwithstanding the determination of an

area's status as prior converted cropland by

any other Federal agency, for the purposes of

the Clean Water Act, the final authority

regarding Clean Water Act jurisdiction

remains with EPA.

Waste treatment systems, including

treatment ponds or lagoons designed to meet

the requirements of CWA (other than cooling

ponds as defined in 40 CFR 423.11(m) which

also meet the criteria of this definition) are

not waters of the United States.

****

(c) The term adjacent means bordering,

contiguous,

or

neighboring.

Wetlands

separated from other waters of the United

States by man-made dikes or barriers,

natural river berms, beach dunes and the like

are “adjacent wetlands.”

INTRODUCTION

Nearly 15 years ago, the efforts of Petitioners

Michael and Chantell Sackett to build their family

home in a residential neighborhood of Priest Lake,

Idaho, were put on indefinite hold. That is because

4

Respondents EPA, et al., 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 they

could proceed with building their home. See Sackett v.

EPA, 566 U.S. 120, 123–25 (2012). EPA has remained

steadfast in that position to this day, despite the fact

that the Sacketts’ home lot contains no “streams,

oceans, rivers, [or] lakes,” and despite its lacking “a

continuous surface connection” to any such water

body. Rapanos v. United States, 547 U.S. 715, 739, 742

(2006) (plurality opinion) (cleaned up). The Sacketts’

ordeal is emblematic of all that has gone wrong with

the implementation of the Clean Water Act since this

Court attempted in Rapanos to rein in the agencies’

extravagant interpretation of the Act’s scope.

That EPA and the Corps are still emboldened,

notwithstanding Rapanos, to operate as federal

zoning administrators—dictating how residential

subdivisions should be built out—is just half of the

problem of the post-Rapanos world. The other is that

neither the lower courts, nor the agencies, nor the

regulated public can agree on what the rule of

Rapanos is, much less agree on how to apply any such

rule efficiently and consistently.

For nearly as long as Rapanos has been in the

United States Reports, the lower courts have been

divided over whether the decision requires

landowners like the Sacketts to disprove jurisdiction

under just the significant nexus test set forth in

Justice Kennedy’s concurring Rapanos opinion, or

also under the test set forth in Justice Scalia’s

plurality opinion, or under both of the foregoing as

5

well as the test from Justice Stevens’ dissenting

opinion. See infra Argument Part I.A.

The agencies have had no better success figuring

out what Rapanos means. They have tried both

informal guidance documents and formal notice-andcomment rulemakings. They have tried an amalgam

test, combining parts of the significant nexus

standard with parts of the Rapanos plurality test.

They have tried elaborating on just significant nexus.

And most recently, they have looked primarily to the

Rapanos plurality opinion. Yet each effort has failed

to produce a workable rule that would satisfy the

lower courts’ conflicting views of what Rapanos

allows. See infra Argument Part I.B.

And finally, there is the plight of hapless

landowners who, like the Sacketts, own “soggy”

property, App. A-4. 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. See U.S. Army Corps of Eng’rs v. Hawkes Co.,

Inc., 136 S. Ct. 1807, 1812 (2016). Yet even if they do

have the resources to defend their position, they are

very reluctant to proceed without permits given the

“crushing” consequences, id. at 1816 (Kennedy, J.,

concurring), if their assessment of jurisdiction proves

to be wrong and EPA “drop[s] the hammer,” Sackett,

566 U.S. at 127. Ordinary citizens seeking to make

reasonable use of their property are therefore left

“with little practical alternative but to dance to the

EPA’s tune.” Id. at 132 (Alito, J., concurring).

6

Fifteen years of fruitless confusion, conflict, and

litigation is enough. This Court can and should chart

a better course for the Clean Water Act by articulating

a clear, easily administered, constitutionally sound

rule for wetlands jurisdiction, using the surfacewater-connection test set forth in the Rapanos

plurality opinion. The Sacketts’ case is an excellent

vehicle for that task. For the Sacketts still want the

right to build a home without seeking federal

approval. EPA still denies them that right while also

reserving the power to assess “steep civil fines.”

Rapanos, 547 U.S. at 721 (plurality opinion). The

record of the case is clear that the Sacketts’ lot

contains no surface water connection to any water

body. See App. A-34 to A-35 nn.13–14; (subsurface

connection only); App. B-23 to B-24 (same). See also

App. C-12 (jurisdictional determination explaining

that the site is separated from the nearest water by a

county road); App. E-1 (aerial photo showing same).

EPA and the Corps need guidance too. They have

announced an intent to commence another

rulemaking, the first step of which is to officially

return to the same regulations under which Rapanos

and the Sacketts’ case were decided. See EPA,

Intention to Revise the Definition of “Waters of the

United States” (June 9, 2021).1 And there is no reason

Available

at

https://www.epa.gov/wotus/intention-revisedefinition-waters-united-states. The agencies have already

returned de facto to those regulations, in response to a recent

district court ruling vacating their most recent rulemaking. EPA,

Current Implementation of Waters of the United States, at

https://www.epa.gov/wotus/current-implementation-watersunited-states (last visited Sept. 18, 2021) (“In light of this order,

the agencies have halted implementation of the Navigable

Waters Protection Rule and are interpreting ‘waters of the

1

7

to wait to allow Congress to bring clarity. Despite the

passage of decades, “Congress has [still] done nothing

to resolve this critical ambiguity” of “the precise reach

of the Act.” Sackett, 566 U.S. at 133 (Alito, J.,

concurring).

The time has come for this Court to act.

STATEMENT OF THE CASE

A. The Sacketts’ home-building project

runs into the Clean Water Act

In 2004, the Sacketts purchased a 0.63-acre

vacant lot in a residential subdivision near Priest

Lake, Idaho. App. A-8; App. B-2. On the north end, the

lot is bounded by a county-owned road, on the other

side of which runs a drainage ditch. App. A-8; App. B21; App. E-1. To the south of the lot, across another

road, is a row of houses that fronts Priest Lake. App

A-8; App. B-24; App. E-1. No surface water connection

exists between the Sacketts’ lot and the roadside

ditch, or between their lot and Priest Lake. App. A-34

to A-35 nn.13–14; App. B-23 to B-24; App. C-12; App.

E-1.

In April, 2007, having obtained all necessary local

permits from Bonner County, Idaho, the Sacketts

began construction of their family home. App. A-8;

App. B-2. On May 3, 2007, shortly after preliminary

earthmoving activities had commenced, officials from

EPA and the Corps entered the lot and suggested to

the Sacketts’ construction workers that the homesite

United States’ consistent with the pre-2015 regulatory regime

until further notice.”).

8

contained “wetlands” subject to federal regulation as

“navigable waters” under the Clean Water Act. App.

A-8 to A-9; App B-2. These officials directed that all

work should cease until the Sacketts obtained a

permit from the Corps. App. A-9; App B-2.

The Clean Water Act, 33 U.S.C. §§ 1251–1388,

regulates discharges of “pollutants” from “point

sources” to “navigable waters.” Id. §§ 1311(a),

1362(12). The Act defines “navigable waters” as

“waters of the United States, including the territorial

seas.” Id. § 1362(7). Although the Act defines

“territorial seas,” it does not define “waters of the

United States.” Id. § 1362(8).

Nonexempt discharges to “navigable waters”

require a permit from either EPA (called a National

Pollutant Discharge Elimination System, or NPDES,

permit) or, if the discharge involves “dredged or fill

material,” from the Corps (commonly called a Section

404 permit).2 See App. App. A-9; App B-2; 33 U.S.C. §§

1342(a), 1344(a). In practice, the Clean Water Act’s

permitting regime is time-consuming and expensive.

See Hawkes, 136 S. Ct. at 1812 (to obtain a Section 404

permit from the Corps takes an average of more than

two years and $250,000 in consulting costs). Even

when obtained, a permit can result in significant

changes to the applicant’s intended operations and

may substantially limit the use of the property. See

Daniel R. Mandelker, Practicable Alternatives for

Wetlands Development Under the Clean Water Act, 48

Envtl. L. Rep. News & Analysis 10894, 10913 (2018)

2 The Clean Water Act authorizes EPA and the Corps to delegate

their permitting authorities to the states. See 33 U.S.C.

§§ 1342(b), 1344(g).

9

(“The [Clean Water Act’s] practicable alternatives

requirement functions . . . as a conditioned permit that

requires project modifications to reduce a

development’s effect on wetlands resources.”). Cf.

Rapanos, 547 U.S. at 721 (plurality opinion) (“In

deciding whether to grant or deny a permit, the

[Corps] exercises the discretion of an enlightened

despot . . . .”). And a person who discharges pollutants

without a required permit, or who violates permit

conditions, risks administrative compliance orders,

administrative penalties, civil penalties and

injunctions, and even criminal prosecution. See id. at

721. See also Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 52–53

(1987).

The significant costs and liability that the Clean

Water Act can impose underscore the importance of

clearly demarcating where the Act’s reach begins and

where it ends. Unfortunately, construing the meaning

of “navigable waters” has proved to be an

overwhelmingly difficult task for the courts, the

agencies, and the regulated public. This is especially

true with respect to non-navigable wetlands such as

those alleged to exist on the Sacketts’ lot.

Shortly after the Clean Water Act was enacted,

EPA and the Corps adopted regulations defining

“navigable waters.” 38 Fed. Reg. 13,528, 13,529

(May 22, 1973); 39 Fed. Reg. 12,115, 12,119 (Apr. 3,

1974). Although EPA’s initial interpretation was quite

broad,3 the Corps’ was more limited. Guided by this

3 For example, EPA claimed NPDES permitting authority over

all “[t]ributaries” of navigable waters, as well as all “lakes, rivers,

and streams” used by “interstate travelers” or used in interstate

10

Court’s longstanding definition of the term “navigable

waters of the United States,” as that phrase was

employed in predecessor statutes, the Corps construed

the Act to reach interstate waters that are navigable

in fact or readily susceptible of being rendered so. See

Rapanos, 547 U.S. at 723 (citing The Daniel Ball, 77

U.S. (10 Wall.) 557, 563 (1870), and 39 Fed. Reg. at

12,119). In 1975, a federal district court rejected this

interpretation as too narrow. Natural Resources

Defense Council, Inc. v. Callaway, 392 F. Supp. 685,

686 (D.D.C. 1975). Rather than appeal the ruling, the

Corps followed EPA’s example and promulgated much

broader regulations. See Rapanos, 547 U.S. at 724.

These revised regulations purported to extend the

scope of “navigable waters” to the outer limits of

Congress’ power to regulate interstate commerce.4 Id.

(citing 42 Fed. Reg. 37,122, 37,144 n.2 (July 19, 1977)).

“industrial” commerce. See 40 C.F.R. § 125.1(o)(2), (4), (6) (1974).

But EPA also followed the Corps’ narrower interpretation for

Section 404 permits. See 40 Fed. Reg. 41,292, 41,293 (Sept. 5,

1975) (EPA final interim guidelines for the Section 404 program

incorporating the Corps’ definition, 33 C.F.R. § 209.120(d)(1)

(1975)).

4 Commentators at the time recognized that these regulations

bore little relationship to Congressional intent. See, e.g.,

Daniel E. Boxer, Every Pond and Puddle—or, How Far Can the

Army Corps Stretch the Intent of Congress, 9 Nat. Resources Law.

467, 470 (1976) (“Congress . . . did not intend . . . that the scope

of regulatory activity by the Army Corps . . . take the direction of

the [revised] regulations.”); Gary E. Parish & J. Michael Morgan,

History, Practice and Emerging Problems of Wetlands

Regulation: Reconsidering Section 404 of the Clean Water Act, 17

Land & Water L. Rev. 43, 84 (1982) (“The existing [regulation]

looks and has an effect similar to a program of federal land use

control. There should be little doubt that Congress did not intend

such a result.”).

11

Thus, federal permitting authority was asserted not

just over interstate waters, but also intrastate waters

with various relationships to interstate or foreign

commerce, all tributaries of such waters, and all

wetlands “adjacent” to, i.e., bordering, contiguous, or

neighboring, any regulated water. Rapanos, 547 U.S.

at 724 (citing 33 C.F.R. § 328.3(a)(1), (a)(3), (a)(5),

(a)(7), and § 328.3(c) (2004)). Over the ensuing years

the agencies also claimed authority over isolated

waters used by migratory birds, pursuant to the socalled “Migratory Bird Rule,” id. at 725 (citing 51 Fed.

Reg. 41,206, 41,217 (Nov. 13, 1986)), as well as

“ephemeral streams” and “drainage ditches” with an

ordinary high water mark. Id. (citing 65 Fed. Reg.

12,818, 12,823 (Mar. 9, 2000)).

The Court has to date addressed the legality of the

agencies’ interpretation of “waters of the United

States” three times.

First, in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985), the Court upheld the

agencies’ regulation of wetlands that “actually abut[]

on” traditional navigable waters. Id. at 135.

Second, in Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers

(SWANNC), 531 U.S. 159 (2001), the Court struck

down the Migratory Bird Rule, thereby rejecting the

agencies’ attempted regulation of “nonnavigable,

isolated, intrastate waters.” Id. at 171.

Finally, in Rapanos, a majority of the Court held

the agencies’ broad interpretation of “navigable

waters” to be invalid insofar as it would reach all

tributaries of traditionally navigable waters and all

12

wetlands adjacent to such tributaries. Rapanos, 547

U.S. at 728 (plurality opinion); id. at 759 (Kennedy, J.,

concurring in the judgment). But no opinion

explaining why the Act cannot be so construed

garnered a majority of the Justices’ votes.

Writing for three other members of the Court,

Justice Scalia argued that the Clean Water Act

reaches only those wetlands that, as in Riverside

Bayview, actually abut other regulated waters, such

that it would be difficult to tell where the wetland

ends and the abutting water begins. Id. at 742

(plurality opinion). Put another way, the surface

water connection must be so substantial that the

wetland and abutting water are rendered

“indistinguishable.” Id. at 755 (emphasis in original).

Although Justice Kennedy provided the fifth vote

to support the Court’s judgment rejecting the

agencies’ attempt to regulate all tributaries and

wetlands adjacent thereto, he disagreed with the

plurality’s rationale for that rejection. Id. at 759

(Kennedy, J., concurring in the judgment). Instead of

a surface-connection test for wetlands jurisdiction,

Justice Kennedy proposed a “significant nexus”

standard. Id. According to this standard, a wetland

may be regulated if it, either alone or in combination

with other “similarly situated” wetlands in the

“region,” significantly affects the physical, chemical,

and biological integrity of a traditional navigable

water. Id. at 779–80. As Justice Kennedy recognized,

the significant nexus test requires a case-by-case

assessment for determining federal authority over

any given wetland. See id. at 773–75.

13

The Chief Justice joined the plurality but

concurred separately to lament the agencies’ failure to

issue new regulations after SWANCC had invalidated

the Migratory Bird Rule. Id. at 757–58 (Roberts, C.J.,

concurring). He also expressed concern that, due to

the lack of a majority opinion, “[l]ower courts and

regulated entities” would lack guidance “on precisely

how to read Congress’ limits on the reach of the Clean

Water Act” and would be left “to feel their way on a

case-by-case basis.” Id. (citing Marks v. United States,

430 U.S. 188 (1977)).

Less than a year after Rapanos, the Sacketts—

“feel[ing] their way” with all local permits in hand—

began construction of their family home, only to be

surprised one spring morning by EPA and Corps

officials who informed the Sacketts’ construction crew

that a federal permit was likely required and thus

that construction should cease. App. A-8 to A-9; App.

B-2. Following the agencies’ initial site visit, the

Sacketts attempted without success to obtain from

EPA an explanation for why the agency claimed

authority over their lot. Ultimately, an answer of sorts

was delivered in November, 2007, in the form of an

administrative compliance order. This EPA directive

asserted that the Sacketts’ home lot contains

“navigable waters” subject to the Clean Water Act and

that the Sacketts had violated the Act by trying to

build a home thereon without first obtaining federal

permission. App. A-9; App. B-2 to B-3. The Sacketts

were ordered to “immediately undertake activities to

restore the Site” and refrain from further

construction. App. A-9. They were given five months

to complete that remediation. Id. And they were

threatened with administrative and civil penalties of

14

tens of thousands of dollars per day should they fail

immediately to comply. Id.; App. B-2 to B-3.

B. The Sacketts’ challenge to EPA and the

Corps’ purported authority over their

home-building project is rebuffed by the

lower courts

1.

The lower courts reject, but this

Court affirms, the Sacketts’ right to

seek judicial review of whether

their home-building project

requires a Clean Water Act permit

Believing that their lot does not contain

“navigable waters” subject to federal authority, the

Sacketts requested from EPA an administrative

hearing on the agency’s order, to no avail. See Sackett,

566 U.S. at 125. The Sacketts therefore proceeded, in

April, 2008, to file an action under the Administrative

Procedure Act to challenge EPA’s assertion of

authority over their property.5 App. A-9. In their

lawsuit, the Sacketts contended that EPA’s

compliance order was arbitrary and capricious

because the Clean Water Act does not grant EPA

authority to regulate their homesite. App. A-9. EPA

moved to dismiss the suit, arguing that the

5 Prior to the filing of the action, EPA had made several

amendments to the compliance order, each postponing the

deadline to complete “remediation” of the site. App. A-10; App.

D-1 to D-2. Shortly after the lawsuit had commenced, EPA

amended the order again to eliminate or to extend some of the

deadlines and remedial requirements, see App. D-2, but the

amended order still asserted jurisdiction over the Sacketts’

property and still concluded that the Sacketts had violated the

Act, App. D-5 to D-7.

15

compliance order was not “final agency action . . .

subject to judicial review.” App. A-10 to A-11. The

district court granted EPA’s motion and the Ninth

Circuit affirmed. See Sackett v. U.S. EPA, 622 F.3d

1139, 1147 (9th Cir. 2010). This Court granted

certiorari and reversed, holding that the order

constituted “final agency action” subject to judicial

review. Sackett, 566 U.S. at 131.

2.

On remand, the district court rules

for EPA on the merits, and the

Ninth Circuit affirms, relying upon

the “significant nexus” test from

Justice Kennedy’s Rapanos

concurrence

On remand to the district court, the parties crossmoved for summary judgment. App. B-1, B-3 to B-4.

On March 31, 2019, the district court entered

summary judgment in EPA’s favor. App. B-31 to B-32.

Applying Justice Kennedy’s “significant nexus” test,

the district court upheld EPA’s claim of authority to

regulate the Sacketts’ lot. App. B-27 to B-30. The

Sacketts then appealed.

In the Ninth Circuit, the Sacketts renewed their

argument from the district court that the Rapanos

plurality contains the controlling rule of law and thus

that the district court had erred by applying Justice

Kennedy’s concurrence to determine the scope of

EPA’s regulatory authority over their lot. A-22 to A25. The Sacketts argued that their homesite—which

is bounded by permanent roads on both ends and has

no surface water connection to any water body—

cannot fall within the Act’s ambit because the

Rapanos plurality limits federal authority to wetlands

16

that have a continuous surface water connection to

regulated waters. App. A-25.

Before reaching the merits, the Ninth Circuit

panel addressed EPA’s contention that the agency’s

voluntary actions taken after entry of the district

court’s judgment had mooted the appeal. App. A-12 to

A-20. On March 13, 2020, after the Sacketts had filed

their opening brief, EPA withdrew the amended

compliance order and made a non-binding

commitment to refrain from issuing another order.

App. A-11 to A-12. But EPA continued to assert

authority to regulate the Sacketts’ lot and refused to

withdraw the jurisdictional determination underlying

the order. App. A-14 to A-15. Cf. App. C-1 to C-22

(jurisdictional determination). The Ninth Circuit

rejected EPA’s mootness arguments. App. A-20. Given

EPA’s steadfast position that the agency has authority

to regulate the Sacketts’ lot, the Ninth Circuit

concluded that the Sacketts’ “central legal challenge”

remains “unresolved” and thus that the controversy

remains very much alive. App. A-14 to A-15, A-17.

Moving to the merits, the Ninth Circuit affirmed

the district court’s conclusion that EPA has authority

over the Sacketts’ homesite. The court began its

analysis with a review of circuit case law applying the

Marks framework for interpreting fractured decisions

like Rapanos. App. A-25 to A-31. Rejecting the

Sacketts’ argument that the Rapanos plurality

governs, the court held that the significant nexus test

set forth in Justice Kennedy’s concurrence is the

controlling rule of law. App. A-25 to A-31. The court

then affirmed EPA’s determination that the Sacketts’

lot contains “adjacent wetlands” within the meaning

17

of the agencies’ regulations,6 and that those wetlands,

in combination with wetlands in the “region,” bear a

significant nexus to Priest Lake.7 App. A-32 to A-36.

REASONS FOR GRANTING CERTIORARI

I.

The lower courts, the agencies, and the

regulated public are at sea as to the scope

of the Clean Water Act

Over the last 15 years, the Court’s splintered

decision in Rapanos has created significant confusion

for the lower courts, the agencies, and especially the

regulated public. This Court’s review is needed to

dispel that confusion and to provide a clear majority

rule to govern the Act’s regulation of wetlands.

A. For almost as long as Rapanos has been

the law, the lower courts have been in

conflict over the rule (or rules) that the

decision establishes for determining

whether land is subject to Clean Water

Act regulation

Within a year of Rapanos, the lower courts were

already split as to the fundamental question of what

test Rapanos establishes. Compare United States v.

Johnson, 467 F.3d 56, 66 (1st Cir. 2006) (to disprove

The Ninth Circuit cited the Corps’ regulatory definition of

“waters of the United States,” App. A-6, but EPA’s is

substantively identical, see 40 C.F.R. §§ 122.2, 230.3(s) (2008).

6

7 The Ninth Circuit also affirmed the district court’s rejection of

the Sacketts’ challenge to EPA’s wetlands delineation of the

Sacketts’ homesite. See App. A-23 n.7. The Sacketts do not seek

this Court’s review as to that issue.

18

jurisdiction, one must defeat the Rapanos plurality as

well as the Kennedy significant nexus tests), with

United States v. Robison, 505 F.3d 1208, 1211 (11th

Cir. 2007) (to disprove jurisdiction, one need only

show the absence of a significant nexus). In the

ensuing years, that split has worsened, with the Third

and Eighth Circuits following the First Circuit,

United States v. Donovan, 661 F.3d 174, 181 (3d Cir.

2011); United States v. Bailey, 571 F.3d 791, 799 (8th

Cir. 2009), and the Seventh and Ninth Circuits

following the Eleventh Circuit, United States v. Gerke

Excavating, Inc., 464 F.3d 723, 724–25 (7th Cir. 2006);

App. A-31. Meanwhile, the Fourth, Fifth, and Sixth

Circuits have taken a somewhat different approach,

declining to decide whether a controlling Rapanos

opinion exists and thus effectively compelling

landowners to disprove jurisdiction under the

Rapanos plurality and significant nexus tests, as well

as (in the Fifth Circuit) the test advanced by the

Rapanos dissent. See Precon Dev. Corp., Inc. v. U.S.

Army Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir.

2011); United States v. Lucas, 516 F.3d 316, 325–27

(5th Cir. 2008); United States v. Cundiff, 555 F.3d 200,

210 (6th Cir. 2009).

The splits among the circuits have occasionally

even run within them. For example, the Ninth Circuit

held in Northern California River Watch v. City of

Healdsburg that the significant nexus test controls.

496 F.3d 993, 999–1000 (9th Cir. 2007) (“Justice

Kennedy’s concurrence provides the controlling rule of

law for our case.”). Yet the court in a later decision

hedged, declaring that jurisdiction might also be

proved under the Rapanos plurality. N. Cal. River

Watch v. Wilcox, 633 F.3d 766, 781 (9th Cir. 2011) (“In

19

City of Healdsburg, the court found that Justice

Kennedy’s concurrence in Rapanos ‘provides the

controlling rule of law for our case.’ We did not,

however, foreclose the argument that Clean Water Act

jurisdiction may also be established under the

plurality’s standard.”) (citation omitted). But then in

United States v. Robertson, 875 F.3d 1281 (9th Cir.

2017), vacated, 139 S. Ct. 1543 (2019), and again

below, the Ninth Circuit appeared to veer back to

exclusive reliance on the significant nexus test. See

Robertson, 875 F.3d at 1289 (“Specifically, in Northern

California River Watch v. City of Healdsburg, a

precedent that is critical to our decision today, we held

that Justice Kennedy’s opinion was the controlling

opinion from Rapanos.”); App. A-25 to A-26 (“In

Northern California River Watch v. City of

Healdsburg, we concluded that ‘Justice Kennedy’s

concurrence provides the controlling rule of law’ from

Rapanos.”) (citation omitted). A similar flip-flop

arguably has occurred in the Seventh Circuit.

Compare Gerke, 464 F.3d at 725 (“Justice Kennedy’s

proposed standard . . . must govern the further stages

of this litigation . . . .”), with Gibson v. Am. Cyanamid

Co., 760 F.3d 600, 621 (7th Cir. 2014) (observing that

“Justice Kennedy’s standard for testing the scope of

federal authority over wetlands under the Clean

Water Act [is] narrower than the plurality’s . . . in

most cases”) (emphasis added).

The confusion has not been limited to circuit

courts; district courts as well have struggled mightily

to figure out what Rapanos means. See, e.g., United

States v. Robison, 521 F. Supp. 2d 1247, 1248, 1249

n.5 (N.D. Ala. 2007) (reassigning case because the

court was “so perplexed by the way the law . . . has

20

developed” and declining to compare Rapanos “to

making sausages because it would excessively

demean sausage makers”); Colorado v. U.S. EPA, 445

F. Supp. 3d 1295, 1312 & n.11 (D. Colo. 2020) (“Again,

it is difficult to discern what Rapanos was for—no

judicial construction of the [Clean Water Act] offered

in that case had the support of five justices. . . . The

problem . . . is that Rapanos arguably forecloses every

formulation of ‘waters of the United States’ proposed

in Rapanos . . . .”), rev’d and vacated on other grounds,

989 F.3d 874 (10th Cir. 2021). Cf. United States v.

Robertson, No. CR 15-07-H-DWM, 2015 WL 7720480,

at *2 (D. Mont. Nov. 30, 2015) (observing with

understatement that the defendant’s “criticism of the

confusion surrounding the definition of ‘waters of the

United States’ may have a ring of truth,” citing United

States v. Moses, 496 F.3d 984, 988 (9th Cir. 2007)

(“Those facially simple provisions [of the Clean Water

Act] have generated a good deal of regulatory and

judicial attention. Suffice it to say that while they are

designed to bring clarity to the Nation’s waters, they,

themselves, are not hyaline.”)), vacated on other

grounds, 773 Fed. Appx. 391 (9th Cir. 2019).8

In Robertson, the Court granted certiorari and vacated the

judgment of the Ninth Circuit affirming the defendant’s

conviction. 139 S. Ct. 1543. In contrast to the Sacketts’ case, the

dispute in Robertson primarily concerned the extent to which the

Act regulates non-navigable tributaries of traditionally

navigable waters. See Robertson, Pet’n for Writ of Cert., No. 18–

609, 2018 WL 5978094, at 8–9, 22–23.

8

21

B. Despite several years of operating

under guidance documents, and then

two immense notice-and-comment

rulemakings, the agencies have failed to

articulate a workable and legally sound

interpretation of Rapanos

Shortly after Rapanos, EPA and the Corps issued

a guidance document, see App. A-45 to A-70, which the

agencies later amended, see EPA & Army Corps,

Memorandum re: Clean Water Act Jurisdiction

Following the U.S. Supreme Court’s Decision in

Rapanos v. United States & Carabell v. United States

(Dec. 2008), A-45 to A-70.9 This Rapanos guidance

articulated a hodge-podge test, taking some aspects

from the Rapanos plurality and some from Justice

Kennedy’s concurrence. See id. at A-45 to A-47. But by

EPA’s own admission, the guidance guided nobody.

See Clean Water Rule: Definition of “Waters of the

United States,” 80 Fed. Reg. 37,054, 37,056 (June 29,

2015) (“[The] guidance documents did not provide the

public or agency staff with the kind of information

needed to ensure timely, consistent and predictable

jurisdictional determinations.”). See also Jamison E.

Colburn, Don’t Go in the Water: On Pathological

Jurisdiction Splitting, 39 Stan. Envtl. L.J. 3, 56 (2019)

(noting how the guidance contributed to “gradient

indeterminacy,” thereby exacerbating “the vagaries of

evidence gathering and other variabilities in the

field,” and resulting in “polarizing jurisdictional

battles”).

9

Available at https://perma.cc/JNN9-HKEG.

22

Recognizing that failure, and taking a cue from

this Court, see Rapanos, 547 U.S. at 757–58 (Roberts,

C.J., concurring), the agencies then embarked upon

notice-and-comment rulemaking. See Jamison E.

Colburn, Governing the Gradient: Clarity and

Discretion at the Water’s Edge, 62 Villanova L. Rev.

81, 133 (2017) (“The [rulemaking] was the Obama

Administration’s response to the legal mess that

[Clean Water Act] jurisdiction has become.”). Issued

in 2015, the “Clean Water Rule,” 80 Fed. Reg. 37,054,

was the result of several years of intense scientific and

economic analysis from agency staff, hundreds of

meetings with state and local governments, regulated

parties, and others, as well as a six-month public

comment period that produced over a million

comments. Stephen M. Johnson, Killing WOTUS

2015: Why Three Rulemakings May Not Be Enough,

64 St. Louis Univ. L.J. 373, 386 (2020). Yet despite

these mighty efforts to craft a rule consistent with

Rapanos, it was preliminarily enjoined within just a

few months of its adoption for being inconsistent with

various aspects of Rapanos. In re EPA & Dep’t of

Defense Final Rule, 803 F.3d 804 (6th Cir. 2015),

vacated on other grounds, In re U.S. Dep’t of Defense,

713 Fed. Appx. 489 (6th Cir. 2018); North Dakota v.

U.S. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015).

Ultimately, two other courts held on the merits that

the rule was unlawful, Texas v. U.S. EPA, 389 F.

Supp. 3d 497 (S.D. Tex. 2019); Georgia v. Wheeler, 418

F. Supp. 3d 1336 (S.D. Ga. 2019), and shortly

thereafter the agencies repealed it and reinstated the

prior regulations, at issue in Rapanos, defining

“navigable waters,” see Definition of “Waters of the

United States”—Recodification of Pre-Existing Rules,

84 Fed. Reg. 56,626 (Oct. 22, 2019).

23

EPA and the Corps then tried again in 2020,

issuing a “Navigable Waters Protection Rule.” 85 Fed.

Reg. 22,250 (Apr. 21, 2020). Like the Clean Water

Rule, the Navigable Waters Protection Rule was the

result of intense agency work, as well as significant

engagement with regulated parties and review of

hundreds of thousands of public comments. See id. at

22,260–62. In the new rule’s preamble, the agencies

observed that “litigation has continued to confuse the

regulatory landscape,” which fact underlined “the

importance of providing clear guidance to the

regulated community.” Id. at 22,256–57. The agencies

therefore sought through the new rule to “adher[e] to

Constitutional and statutory limitations, the policies

and objective of the [Clean Water Act], and case law,”

so as to enable “the regulatory agencies and the

regulated community to protect navigable waters

from pollution while providing an implementable

approach to determining regulatory jurisdiction under

the [Clean Water Act].” Id. at 22,262. But this third

agency effort at construing Rapanos failed as well,

with one district court preliminarily enjoining it

shortly after its issuance, Colorado, 445 F. Supp. 3d

at 1299, and another vacating it because of the rule’s

“fundamental, substantive flaws,” Pascua Yaqui Tribe

v. U.S. EPA, No. CV-20-00266-TUC-RM, 2021 WL

3855977, at *5 (D. Ariz. Aug. 30, 2021).

24

C. The confusion as to which jurisdictional

test or tests Rapanos establishes,

coupled with the great indeterminacy of

the significant nexus test, imposes

extraordinary costs and potentially

crushing penalties on ordinary

Americans engaged in everyday

land-use

As this Court has recognized, for property owners

who after Rapanos must “feel their way on a case-bycase basis,” Rapanos, 547 U.S. at 758 (Roberts, C.J.,

concurring), identifying whether one’s “soggy” land,

App. A-4, is regulated by the Clean Water Act is “often

difficult,” Hawkes, 136 S. Ct. at 1812. Accord Sackett,

566 U.S. at 132 (Alito, J., concurring) (“The reach of

the Clean Water Act is notoriously unclear.”); Hawkes,

136 S. Ct. at 1816 (Kennedy, Thomas, Alito, JJ.,

concurring) (“[T]he reach and systemic consequences

of the Clean Water Act remain a cause for concern.”).10

To begin with, in some jurisdictions property

owners cannot even identify the pertinent legal

standard. Will they have to disprove jurisdiction

under just the significant nexus standard, or under

the Rapanos plurality too, or perhaps also under the

standard of the Rapanos dissent? See supra Part I.A.

Things are not much better even in those

jurisdictions, like the Ninth Circuit, where the

10 Indeed, as Justice Kennedy himself acknowledged, sogginess

alone does not tell landowners whether their property is

regulated. Rapanos, 547 U.S. at 761 (Kennedy, J., concurring in

the judgment) (emphasizing that “wetlands are not simply moist

patches of earth”).

25

significant nexus test is exclusively controlling, for it

is incredibly challenging to figure out what the

significant nexus test actually requires. See Orchard

Hill Building Company v. U.S. Army Corps of Eng’rs,

893 F.3d 1017, 1025 (7th Cir. 2018) (“Justice Kennedy

did not define ‘similarly situated’—a broad and

ambiguous term . . . .”); United States v. Chevron Pipe

Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006)

(“This test leaves no guidance on how to implement its

vague, subjective centerpiece. That is, exactly what is

‘significant’ and how is a ‘nexus’ determined?”);

Lawrence R. Liebesman, et al., Rapanos v. United

States: Searching for a Significant Nexus Using

Proximate Causation and Foreseeability Principles, 40

Envtl. L. Rep. News & Analysis 11242, 11253 (2010)

(“The significant nexus concept is fraught with

unknowns.”).

Because of its opacity, landowners uncertain

about their rights must hire expert consultants and

resort to litigation—always burdensome and

expensive undertakings—to operationalize the

significant nexus test. See J.B. Ruhl, Proving the

Rapanos Significant Nexus, 33 Nat. Res. & Env’t 51,

52–53 (2018) (“The harder proposition has been

proving or disproving a significant nexus. [¶] As a

matter of practice, however, if . . . a landowner . . .

hopes to satisfy the significant nexus standard, it is

advisable to bring along experts. [¶] [I]t is a fool’s

errand for landowners to dispute assertions of

jurisdiction without rigorous expert-based evidence.”);

Dialogue, The Impact of Justice Kennedy and the

Effect of His Retirement, 48 Envtl. L. Rep. News &

Analysis 10863, 10864 (2018) (remarks of John C.

Cruden) (“I can’t imagine any more significant

26

concurring opinion in the history of the Court than his

concurring opinion in Rapanos, which we’re still

trying to figure out and has spawned numerous

litigation.”). Cf. Hawkes Co., Inc. v. U.S. Army Corps

of Eng’rs, 782 F.3d 994, 1003 (8th Cir. 2015) (Kelly, J.,

concurring) (“[J]ust how difficult and confusing it can

be for a landowner to predict whether or not his or her

land falls within [Clean Water Act] jurisdiction . . . is

a unique aspect of the [Clean Water Act]; most laws

do not require the hiring of expert consultants to

determine if they even apply to you or your

property.”).

As one might expect, confusion over how to apply

the significant nexus test means that more, not less,

land is regulated. Indeed, virtually any wet area is at

least presumptively covered. See Samuel P. Bickett,

The Illusion of Substance: Why Rapanos v. United

States and Its Resulting Regulatory Guidance Do Not

Significantly Limit Federal Regulation of Wetlands,

86 N.C. L. Rev. 1032, 1041 (2008) (“In practice, postRapanos litigation has shown that it is quite easy to

prove the existence of a significant nexus between

navigable-in-fact waters and wetlands.”). That in turn

raises significant federalism concerns. See Thomas J.

Philbrick, From Asahi to WOTUS: Why “Significant

Nexus” Falls Short, 9 LSU J. Energy L. & Resources

165, 196 (2021) (“[T]here is a presumption against

federal preemption of states’ ability to regulate their

own affairs. The ‘significant nexus’ test would allow

agencies (and, to a lesser degree, courts) to override

this presumption and violate the foundational

principles of federalism.”) (footnote omitted).

27

Converting the Clean Water Act into a federal

zoning code is not, of course, what Justice Kennedy

wanted, for he intended his test to be a limitation on

federal authority. See Rapanos, 547 U.S. at 776–77

(Kennedy, J., concurring in the judgment) (criticizing

the plurality opinion for allegedly leading to

“constitutional difficulties and federalism concerns”

as well as “applications of the statute as far from

traditional federal authority as are the waters [the

plurality] deems beyond the statute’s reach”). See

Bradford C. Mank, Implementing Rapanos—Will

Justice Kennedy’s Significant Nexus Test Provide a

Workable Standard for Lower Courts, Regulators, and

Developers?, 40 Ind. L. Rev. 291, 294 (2007) (“Justice

Kennedy had to remain true to SWANCC’s underlying

principle that the Act is limited to waters that have

some meaningful connection to navigable waters.”).

But as Justice Kennedy belatedly recognized, the

confusion surrounding his significant nexus test, and

Clean Water Act jurisdiction generally, leads to more

than just inter-governmental disputes and run-of-themill regulatory headaches. Given that “the

consequences to landowners even for inadvertent

violations can be crushing,” Hawkes, 136 S. Ct. at

1816 (Kennedy, J., concurring), such confusion raises

constitutional concerns of fair notice and due process.

During the Hawkes oral argument, Justice Kennedy

observed that “the Clean Water Act is unique in both

being quite vague in its reach, arguably

unconstitutionally vague, and certainly harsh in the

civil and criminal sanctions it puts into practice.” He

struggled to identify any “analogous statute that gives

the affected party so little guidance at the front end.”

Transcript of Oral Argument at 18:11-19, Hawkes, 136

28

S. Ct. 1807. For those reasons, he concluded in his

concurring opinion that the Clean Water Act

“continues to raise troubling questions regarding the

Government’s power to cast doubt on the full use and

enjoyment of private property throughout the Nation.”

Hawkes, 136 S. Ct. at 1817 (Kennedy, J., concurring).

*

*

*

*

*

The lower courts are in entrenched conflict as to

how to interpret Rapanos. The agencies have

repeatedly tried to provide help through guidance and

rulemaking, to no avail. See Nat’l Ass’n of Mfrs. v.

Dep’t of Defense, 138 S. Ct. 617, 624 (2018) (“What are

the ‘waters of the United States’? As it turns out,

defining that statutory phrase . . . is a contentious and

difficult task.”). Meanwhile, average citizens seeking

to do normal, everyday activities—like building a

family home—are left adrift, uncertain if their

sometimes “soggy” property may be regulated. They

are immobilized by the understandable fear of the

“crushing” consequences should they guess wrong as

to jurisdiction, even if they are among the very few

who can afford the six-figure costs of the permitting

process, Hawkes, 136 S. Ct. at 1812, or the squad of

wetland consultants and lawyers needed to disprove

jurisdiction and to defend that conclusion in court.

This deep confusion, especially with respect to

how to apply the significant nexus test, indicates that

the stare decisis value of Justice Kennedy’s Rapanos

concurrence—assuming that it has any such value

under Marks—is at best minimal. See generally Knick

v. Township of Scott, 139 S. Ct. 2162, 2178 (2019)

(poorly reasoned decisions establishing unworkable

rules merit little stare decisis weight). This Court can

29

therefore provide desperately needed clarity by

granting the petition to revisit Rapanos and to adopt

its plurality wetland test as the controlling rule.

II.

The Sacketts’ case provides an

excellent vehicle for this Court to

end the Rapanos confusion and to

articulate a clear and easily

administered rule for determining

the Clean Water Act’s wetlands

jurisdiction

This Court can readily end the years of confusion

and conflict over the scope of the Clean Water Act by

adopting the Rapanos plurality rule of continuous

surface water connection. The Sacketts’ petition

provides the Court with the right vehicle for making

that happen.

First, the Sacketts’ case presents a sharply live

controversy. Although the compliance order has been

rescinded, EPA could reissue it at any moment. App.

A-16. Moreover, regardless of the fate of the

compliance order, the Sacketts still remain liable, in

response to an enforcement action brought by EPA or

a citizen-suit plaintiff, see 33 U.S.C. § 1365, for

gargantuan civil penalties for violation of the Act

itself. See Sackett, 566 U.S. at 126. And even were

there no liability for past action, the core of the

parties’ dispute—may the Sacketts build a home

without having to obtain a Clean Water Act permit?—

remains at issue. App. A-16, A-20. Indeed, over the

course of this nearly decade-and-a-half litigation, EPA

has studiously avoided declaring that it lacks

authority over the Sacketts’ property or their home-

30

building project. App. A-14 to A-15.11 The fair

inference is that the agency does believe that it retains

authority. And if that was true when future activity

on the Sacketts’ property would have been subject to

the narrower Navigable Waters Protection Rule, it is

all the more so now that EPA is already re-applying

throughout the nation the broader regulations at

issue in Rapanos. See supra note 1.

Second, now is the right time for the Court to

weigh in on the scope of the Clean Water Act. Several

months ago, EPA and the Corps announced their

intention to formally repeal the Navigable Waters

Protection Rule and then to replace it with a new rule.

See supra note 1. Given the agencies’ horrible trackrecord at construing Rapanos in a manner that

provides real guidance to the regulated public and

that satisfies the demands of the lower courts, see

supra Part I.B., intervention by this Court to provide

a clear jurisdictional rule would be invaluable to the

agencies in their long-term regulatory efforts.

Third, the facts of the Sacketts’ case are perfectly

fitted for highlighting the difference in practice

between the significant nexus test and the Rapanos

plurality’s surface connection rule. The Ninth Circuit

concluded below that, under the former, the Sacketts’

property is covered. App. A-32 to A-36. But the record

is clear that, under the latter, it is not. See App. A-33

to A-34 (“EPA therefore properly concluded that the

11 Below, the Sacketts requested that EPA expressly declare that

it does not have authority over their home-building project, but

the agency failed to do so. See Plts.–Apps.’ Opp’n to Mot. to

Dismiss the Appeal as Moot at 5, Doc. No. 23–1, Case No. 19–

35469 (filed Apr. 9, 2020).

31

wetlands on the Sacketts’ lot were adjacent to the

unnamed tributary to Kalispell Creek thirty feet

away, notwithstanding that Kalispell Bay Road lies in

between the property and the tributary.”); App. A-35

n.14 (“[T]he Sacketts’ wetlands and the Fen

[wetlands] remain interconnected via a subsurface

flow, and historical aerial photographs establish that

they used to be a single wetland complex . . . .”)

(emphasis added); App. C-12 (jurisdictional

determination stating that the Sacketts’ site’s

connection is “subsurface” and that the lot is

separated from the nearest regulated water by a

road). See also E-1 (aerial photo of site showing the

same).

Finally, this Court should act now because

waiting for Congress has not resulted in any

legislative fix in the 15 years since Rapanos was

decided. To be sure, Congress could have given “[r]eal

relief” by providing “a reasonably clear rule regarding

the reach of the Clean Water Act.” Sackett, 566 U.S.

at 133 (Alito, J., concurring). And it is only by such

“clarification of the reach” of the Act that the

“underlying problem” besetting “aggrieved property

owners” like the Sacketts can be resolved. Id. But

despite ample time, Congress has not acted. It thus

falls to this Court to do so.

32

CONCLUSION

The petition for writ of certiorari should be

granted.

DATED: September 2021.

Respectfully submitted,

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

930 G Street

San Francisco, CA 94101

Sacramento, CA 95814

Telephone: (415) 402-2707

Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners