Impending Sackett Decision: Reach of Wetlands Jurisdiction Continues to Be ‘Notoriously Unclear’ But Perhaps Not for Long

The U.S. Supreme Court recently announced that its next term beginning Oct. 3, 2022, will begin by hearing oral argument in the second Supreme Court case involving the ongoing saga of the Sacketts’ development of their property in Idaho and their challenge to the Environmental Protection Agency’s authority. The EPA recently filed a brief in reply to the Sacketts’ brief, warning that their proposed test for identifying whether a wetland is covered under the Clean Water Act would “turn on arbitrary and shifting distinctions.” In the Supreme Court’s initial Sackett opinion, Justice Samuel Alito wrote in a concurring 2012 opinion that the reach of the Clean Water Act is “notoriously unclear” in the wetlands context and he thought Congress should provide a “reasonably clear rule regarding the reach of the Clean Water Act.”