Golden Gate University Law Review


Brian Gillis


This case note analyzes Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1080 (9th Cir. 2021), a case wherein the U.S. Court of Appeals for the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” within the meaning of the Clean Water Act (33 U.S.C. §1251 et seq. (1972)). In 2007, the Sacketts had purchased a 0.63 acre lot in Idaho, obtained building permits, and began constructing a house, which resulted in the deposit of sand and gravel in areas of standing water on the property. Soon thereafter, the Environmental Protection Agency (EPA) found that the property included wetlands that fell under the regulatory jurisdiction of the Clean Water Act. The EPA issued a formal compliance order instructing the Sacketts to restore the wetlands on their property or face fines of up to $40,000 per day. Eighteen years later, after lengthy litigation, the Sacketts went to the U.S. Supreme Court for the second time. In January 2022, the Supreme Court granted certiorari on the question of whether the Ninth Circuit had set forth the proper test. Within the context of Sackett, this Note outlines the history of the Clean Water Act. Next, it reviews the relatively recent cases that have shaped the definition of “waters of the United States” and the jurisdiction of the Clean Water Act, including the origin of the term “significant nexus.” Third, this Note surveys the executive branch’s role in defining key terms of the Clean Water Act, including how definitions change with each succeeding administration. Finally, this Note explores the Ninth Circuit’s decision in Sackett. Ultimately, this Note argues that Congress must address the criticisms that arose in Sackett by creating regulatory clarity to meet the needs of the environment.