On May 25, 2023, the U.S. Supreme Court announced a five-justice majority decision in the case of Sackett v. Environmental Protection Agency. The case arose out of a decades-long dispute over whether the Sackett’s property is subject to federal wetland permitting requirements under the Clean Water Act (CWA). Federal jurisdictional wetlands under the CWA are commonly referred to as “water of the United States” (WOTUS). The Sacketts previously were before the Supreme Court in 2012, when the court ruled that an Army Corps of Engineers (Corps) jurisdictional determination is a final agency action that an applicant can challenge in court.
Recently, the Sacketts were back before the Supreme Court to ask the court to rule on whether Ninth Circuit properly held that the Sackett’s property was subject to CWA jurisdiction and whether the CWA covers adjacent wetlands with a “significant nexus” to traditional navigable waters. All nine justices agreed that the Sackett’s property at issue in the case was not subject to federal jurisdiction and permitting.
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