Of course, the Supreme Court’s impending consideration of the “proper test” to be addressed in Sackett II has been preceded for many years by back-and-forth rulemaking and litigation challenges to differing EPA and U.S. Army Corps of Engineers (Corps) rules attempting to define WOTUS, all coinciding with much of the Sackett’s circuitous legal battle. Major milestones include the Obama administration’s promulgation of the Clean Water Rule in June 2015, which referenced and sought to implement Justice Kennedy’s concurring opinion in Rapanos v. EPA, and defined WOTUS to include eight categories of jurisdictional waters. Multiple lawsuits challenged the Clean Water Rule, the specific outcomes of which exceed the scope of this article. With the change in presidential administration, the Trump administration’s EPA and Corps repealed the Clean Water Rule and eventually replaced it the Navigable Waters Protection Rule in 2020, which established four categories of waters considered to be within CWA jurisdiction and was aligned more closely to the plurality opinion of the late Justice Scalia in Rapanos, in part by including “perennial and intermittent tributaries that contribute surface water flow” to navigable waters; this excluded watercourses with less than intermittent flow regimes.
As with the Clean Water Rule, many groups challenged the Navigable Waters Protection Rule, and on August 30, 2021, the U.S. District Court for the District of Arizona vacated the rule. Pasqua Yaqui Tribe v. United States EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021). Shortly thereafter the Biden administration’s EPA and Corps indicated they would interpret WOTUS in a manner consistent with the “pre-2015 regulatory regime,” taking the definition back to the so-called “Rapanos Guidance” promulgated by EPA and the Corps that applies both the Kennedy “significant nexus” test and the Scalia “continuous surface connection” test. EPA also began a stakeholder process to support a future rulemaking step to refine the definition of WOTUS. It is against this backdrop of rulemaking challenges and replacement definitions of WOTUS that the Sacketts’ challenge of the “proper standard” of what are “WOTUS” will be determined.
The Petitioners have asserted in their briefs that Justice Kennedy’s “significant nexus” test should be abandoned, instead urging a two-part test similar to the plurality in Rapanos (relative permanence of the “navigable water” and a continuous surface connection to wetlands), but with additional scrutiny over Congress’ commerce clause authority to regulate intrastate waters. In its response brief, the Biden administration argues that a “restrictive version of the ‘continuous surface connection’ test articulated by the [Rapanos] plurality . . . has no grounding in the CWA’s text, structure or history” and notes that such an approach would seriously compromise the Act’s protections afforded to many adjacent wetlands and the waters associated with them. Whatever the outcome, the Sacketts, permitting agencies, and permittees alike will benefit from a lasting measure of certainty concerning the scope of jurisdictional WOTUS following the Court’s decision.