Sackett v. EPA

Rapanos 4-1-4 split (2006)

  • Four justices for “do nothing” and let stand the Army Corps “hydrological connection” test

  • Justice Kennedy for a new (more limited?) “significant nexus” test

  • Four justices for a new (much much much more limited) “permanent surface waters only” test

  • Kennedy joined the “surface waters only” justices in judgment (ruling for Mr. Rapanos) but did not join their opinion, making it a plurality opinion not a majority opinion and thus not precidental—i.e., not binding policy (sort of).

Sackett v. EPA

Outcome: “Significant nexus” \(\rightarrow\) “abutting”

  • Hydrological connection
  • Significant nexus
  • Continuous surface water connection
  • Continuous (navigable?!) surface water

Wetland loss in Michigan (2001-2016)

+ $490,000/yr Michigan flood damages