The Supreme Court will take another shot at deciding the scope of the Clean Water Act, granting a petition to determine whether 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'" under the CWA.
The court issued its decision Monday in an order list that once again did not include a decision on a petition from the National Pork Producers Council and American Farm Bureau Federation seeking review of California’s Proposition 12, which bans the sale of pork from animals whose sows do not have minimum housing requirements.
The CWA petition involves a long-running dispute between two Idaho landowners and EPA over an area of their property deemed wetlands by the agency. Chantell and Michael Sackett were victorious in 2012 when the high court ruled that they could challenge EPA’s compliance order requiring restoration of the purported wetlands.
EPA withdrew the compliance order, but the 9th Circuit went ahead and issued a decision in August affirming EPA’s wetlands determination. The Sacketts, saying the order could be reissued at any time, filed a new petition seeking review of the Supreme Court’s fractured Rapanos decision in 2006, which lower courts have interpreted as adopting a “significant nexus” test outlined by former Justice Anthony Kennedy to determine whether waters can be regulated under the Clean Water Act.
“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” said Damien Schiff, a senior attorney at Pacific Legal Foundation, which represents the Sacketts. “The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting. The Sacketts are delighted that the court has agreed to take their case a second time, and hope the court rules to bring fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”
The Sacketts have the support of 21 states, the U.S. Chamber of Commerce, the National Association of Home Builders and a handful of conservative legal foundations, including PLF. No agricultural groups, however, filed amicus briefs backing the Sacketts, who contend Rapanos should be read as requiring a “continuous surface water connection” to demonstrate jurisdiction.
EPA had urged the court to deny the petition, again citing the lack of a conflict in the Circuit Courts of Appeals. The agency also disputed the Sacketts’ reading of Rapanos, noting that in Kennedy’s “significant nexus” test, he “concluded that wetlands have such a nexus when they, ‘either alone or in combination with other similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.’”
The Sacketts’ wetlands meet that test, EPA said. “The court of appeals found ample evidence that the wetlands on petitioners’ property are similarly situated to the Kalispell Bay Fen across the road and that, together, those wetlands ‘significantly affect the integrity of Priest Lake.’”