Ninth Circuit Continues to Uphold the Significant Nexus Test for Navigable Waters Under the Clean Water Act

October 2021

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 2, Number 1

For the last thirteen years, the U.S. Environmental Protection Agency (“USEPA”) and the Sacketts have been engaged in what can only be described as a Clean Water Act (“CWA”) saga, that has generated largely procedural CWA case law.  For instance, in 2012, upon hearing one of the Sacketts’ cases, the U.S. Supreme Court determined that issuance of a jurisdictional determination by the U.S. Army Corps of Engineers (“Army Corps”), that identifies jurisdictional Waters of the United States (“WOTUS”), constituted final agency action subject to challenge in federal court.  (Sackett v. U.S. Environmental Protection Agency, 566 U.S. 120 (2012).)  In the most recent case, the Ninth Circuit Court of Appeals primarily considered whether the Sacketts’ Idaho property contained wetlands subject CWA Section 404 dredge and fill permitting requirements.  (Sackett v. U.S. Environmental Protection Agency, 8 F.4th 1075 (9th Cir. 2021); 33 U.S.C. § 1344.)  To reach a conclusion, the Ninth Circuit examined which of the now-many WOTUS definitions controlled the character of wetlands in this case, as well as which opinion, in the notoriously fractured Rapanos v. United States, (547 U.S. 715 (2006)), applies.  Ultimately, the Ninth Circuit found that the WOTUS definition in place at the time of agency action controls the analysis, and that, pursuant to the holding in Northern California River Watch v. City of Healdsburg, (496 F.3d 993 (9th Cir. 2007)), Justice Kennedy’s significant nexus test is the controlling case law in the Circuit.

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