The Supreme Court will take up a challenge to the Clean Water Act that could narrow the law’s reach in ways long sought by businesses and home builders.
The case raises the question of the test that courts should use to determine what constitutes “waters of the United States,” which the Clean Water Act was passed to protect in 1972.
In a 2006 case called Rapanos v. U.S., the court could not muster a majority opinion. Four justices, led by Justice Antonin Scalia, said the provision means water on the property in question must have a connection to a river, lake or other waterway.
But a fifth justice, Anthony M. Kennedy, created the test that emerged from the case, saying the act covers wetlands with a “significant nexus” to those other bodies of water.
“Neither the lower courts, nor the agencies, nor the regulated public can agree on what the rule of Rapanos is, much less agree on how to apply any such rule efficiently and consistently,” said a brief from the Pacific Legal Foundation, which represents the property owners, Chantell and Mike Sackett.
The court “should chart a better course for the Clean Water Act by articulating a clear, easily administered, constitutionally sound rule for wetlands jurisdiction, using the surfacewater-connection test set forth” in Scalia’s plurality opinion, the group says.
The Biden administration said that would be the wrong approach. It would mean “agencies would lack authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity,’ ” said a brief filed by the solicitor general.
It said courts have had no trouble applying the Rapanos test, and that judges have consistently found that the wetlands on the Sackett property have a subsurface connection to Priest Lake.
Moreover, it said, the administration is in the midst of writing new rules to implement the Clean Water Act, which almost surely will govern the Sackett property going forward.
But getting rid of Kennedy’s interpretation of the rules is a long-sought goal of business groups, and organizations such as the U.S. Chamber of Commerce and National Association of Home Builders urged the court to take the case.
The Sacketts’ legal battle has been running since 2007, when the two began to prepare their lot in a subdivision for construction. The EPA said a permit was needed under the Clean Water Act, and threatened the couple with heavy fines if they did not desist.
Their case reached the Supreme Court in 2012 on a technical question: Could they challenge the EPA order in federal court before the agency took final action?
The answer for the court was a unanimous yes, and Scalia wrote the opinion. The government had taken the position that such orders were not open to judicial review until the agency took final action.
Scalia joked in summarizing the decision from the bench that the Sacketts were surprised by the EPA’s decision that their land contained “waters of the United States,” since they had “never seen a ship or other vessel cross their yard.”
But on remand to lower courts, judges ruled for the EPA and found that the land did qualify under the federal act.
The case is Sackett v. Environmental Protection Agency.