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Supreme Court to hear case on EPA’s Clean Water Act authority

Justices asked to define federal jurisdiction over the 'waters of the U.S.'

The Supreme Court is being asked to determine whether bodies of water like swamps or bogs are within federal jurisdiction under the Clean Water Act.
The Supreme Court is being asked to determine whether bodies of water like swamps or bogs are within federal jurisdiction under the Clean Water Act. (Wolfgang Kaehler/LightRocket via Getty Images)

The EPA’s power to enforce the Clean Water Act could be curtailed in a case to be considered by the Supreme Court when it convenes Monday.

The case of Sackett v. EPA centers on a long-standing argument over the definition of “waters of the U.S.,” a term included in the act to describe which bodies of water are subject to federal oversight.

The plaintiffs, Chantell and Michael Sackett, purchased a plot of land near Priest Lake in Idaho in 2004 with the intent of filling in what they described as a “soggy lot” with sand and gravel. After they had partially done so, they were ordered by the EPA to remove the fill and restore the wetlands because they were protected by the CWA.

The Sacketts sued the agency in 2008, arguing its jurisdiction did not extend to their property. After they appealed to the Supreme Court to establish their right to challenge the agency’s decision, the U.S. Court of Appeals for the 9th Circuit upheld the EPA order. The Sacketts’ appeal is now before the high court.

The Pacific Legal Foundation, a conservative nonprofit representing the Sacketts, is asking the court to clarify its ruling in another CWA-related case, Rapanos v. United States, which in 2006 resulted a 4-1-4 opinion that led to different standards defining federal jurisdiction under the act.

In his decision in Rapanos, Justice Antonin Scalia, writing for himself and three conservative members of the court, said that the EPA has oversight of “relatively permanent” surface waters that connect to larger bodies. While four other justices argued the agency had wide discretion to determine which bodies were protected, Justice Anthony M. Kennedy wrote a concurring opinion that fell between the two, finding that waters with a “significant nexus” could be regulated under the CWA.

In the years since courts have held that the EPA’s jurisdiction over wetlands can be established under either Kennedy’s or Scalia’s standard. The 9th Circuit’s decision in the Sackett case was based on the application of Kennedy’s standard, which led the Sacketts to appeal.

Damen Schiff, an attorney at the Pacific Legal Foundation and lead counsel for the Sacketts, said the issue is a matter of congressional authority and that the authors of the CWA did not explicitly extend regulation to wetlands when the law was passed in 1972.

“Even then, Congress recognized that wetlands are not the same thing as waters,” Schiff said at an event hosted by the Heritage Foundation. “In our briefing in the Supreme Court we cite a few federal laws that were passed in the decade or so leading up to the Clean Water Act, where Congress clearly distinguishes between types of waters and other features such as wetlands.”

Groups including the Chamber of Commerce and the American Petroleum Institute have backed the Sacketts in the case, citing a need for regulatory certainty under a narrow definition and urged the court to set a unifying precedent.

“The uncertainty over the Clean Water Act’s reach has persisted for far too long,” oil and natural gas industry groups said in an amicus brief. “And the consequences of perpetuating that uncertainty are far too serious.”

But environmental groups and the Biden administration said the connectivity of these waterways as a larger system supports protecting them under the CWA, and that regulating these wetlands fulfills Congress’ original goal to protect water quality and aquatic ecosystems.

A brief filed by Biden administration attorneys cited the significant nexus standard and said that wetlands, such as those on the Sacketts property, “play an essential role in protecting the chemical, physical, and biological integrity of neighboring waterways.”

“Leaving those wetlands unprotected would thwart the CWA’s comprehensive scheme and seriously compromise its protection of traditional navigable waters,” the administration’s lawyers said.

‘Gaping loophole’

“If you don’t protect those things you’ve got a gaping loophole that allows paving over of wetlands, dumping pollutants, or filling in of streams that are essential for downstream water quality,” said Nick Torrey, an attorney with the Southern Environmental Law Center. “And then you can’t achieve what Congress set out very clearly as the sole objective of the Act, to restore and maintain the chemical, physical and biological integrity of the nation’s waters.”

In 2017, the EPA estimated that defining a “continuous surface connection” as directly touching a water of the U.S. may result in roughly 51 percent of wetlands not being considered adjacent. This figure is higher in many western states where many streams are ephemeral.

The court has moved to the right since its ruling in Rapanos, and a decision in favor of the Sacketts would impact efforts to finalize a new WOTUS rule.

In 2015, the Obama administration finalized a rule that more closely hewed to Kennedy’s interpretation of the law, a move that was opposed by industry and farming groups over concerns it would increase federal oversight. The Trump administration reversed that move and finalized its own rule in 2020, citing Scalia’s opinion. The Trump rule was vacated by a district court last year.

EPA Administrator Michael S. Regan said he hopes to find a “middle ground” that includes elements of both rules, and the agency said it expects to issue a final regulation by the end of the year. The EPA unsuccessfully requested that the Supreme Court set aside the case until the completion of the rulemaking process.

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