Ultimately, the Supreme Court could weigh in on what Congress intended for the
Clean Water Act’s reach, which could in turn limit the EPA’s authority.
The U.S. Supreme Court will once again be deciding the scope of the Clean Water Act (CWA) after granting a petition to determine whether the U.S. Court of Appeals for the 9th Circuit “set forth the proper test for determining whether wetlands are ‘waters of the United States’” under the CWA. The court issued its decision Jan. 24.
The justices said they will hear an appeal from Chantell and Michael Sackett, a couple from Idaho entangled in a 15-year-old battle to build a house on land that federal regulators say is protected wetlands. The Sacketts won a 2012 Supreme Court ruling in which the court ruled that they could challenge the EPA’s compliance order requiring restoration of the purported wetlands.
Last August, the 9th Circuit issued a decision affirming the EPA’s wetlands determination. The Sacketts filed a new petition seeking a review by the Supreme Court of the court’s fractured Rapanos v. United States ruling dating back to 2016. The fractured 4-1-4 decision in Rapanos interpreted the term “waters of the United States” as covering “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such waters. Justice Kennedy’s opinion defining covered waters as having a “significant nexus” to “navigable waters” has remained open to judicial interpretation and considerable controversy. Some regulations included water features such as intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as “waters of the United States.”
The EPA urged the court to deny the Chantell and Michael Sackett petition, citing the lack of conflict in the Circuit Courts of Appeals. With that said, the Sacketts have the support of 21 states and the U.S. Chamber of Commerce. Ultimately, the court could weigh in on what Congress intended for the Clean Water Act’s reach, which could in turn limit the EPA’s authority. The Supreme Court is expected to hear arguments in Sackett v. EPA next term.
 after granting a petition to determine whether the
U.S. Court of Appeals for the 9th Circuit “set forth the proper test
for determining whether wetlands are ‘waters of the United States’”
under the CWA. The court issued its decision Jan. 24.){kind=small}
