An Idaho couple wants to limit where the law applies, but not all justices seem convinced

Look West: Public lands and energy news from the Center for Western Priorities


** U.S. Supreme Court weighs whether to narrow scope of the Clean Water Act
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Tuesday, October 4, 2022
Ash Meadows National Wildlife Refuge, home to wetlands of international importance, in Nevada. U.S. Fish & Wildlife Service ([link removed])

On the first day of its new term, the U.S. Supreme Court heard oral arguments in Sackett v. Environmental Protection Agency ([link removed]) , a case with the potential to restrict the scope of the Clean Water Act. Recently, the Supreme Court has ruled in favor of ([link removed]) narrowing the scope of other environmental protection laws, as it did in West Virginia v. EPA ([link removed]) , which relied on the "major questions doctrine" ([link removed]) to prevent the EPA from regulating carbon emissions from power plants ([link removed]) under the Clean Air Act. Depending on what the Court decides, up to 80 percent of streams in the southwestern U.S.
([link removed]) could lose Clean Water Act protections.

The Sackett case centers on how courts should decide whether a waterbody qualifies as a water of the U.S. and therefore is protected by the Clean Water Act. In the 2006 case Rapanos v. U.S. ([link removed]) , the Court held that the Clean Water Act does not apply to all wetlands; however, the Court was split 4-1-4 in its decision, leaving it unclear ([link removed]) which of two competing tests should be used to determine to which wetlands the Clean Water Act applies. In his plurality opinion, the late Justice Antonin Scalia set forward a "continuous surface connection" test to determine whether a waterbody is a water of the U.S. In a concurring opinion in the same case, former Justice Anthony Kennedy outlined a more flexible "significant nexus" test under which more wetlands would qualify for protection.

Idaho landowners Chantell and Michael Sackett, who wish to build on a property ([link removed]) near Priest Lake, hope that the Court will decide definitively that the "continuous surface connection" test is the correct test to use. Wetlands on the Sacketts' property used to be part of a larger wetland system next to Priest Lake, but are now separated from that system by a road. A decision in favor of the "continuous surface connection" test would presumably enable the Sacketts to proceed ([link removed]) with building on their property without obtaining a Clean Water Act permit. The EPA argues that the "significant nexus" test is in line with what Congress intended ([link removed]) when it passed the Clean Water Act. Besides, the presence of a water of the U.S.
on a landowner's property does not prohibit the landowner from building ([link removed]) — they just have to obtain a Clean Water Act permit first.

In Monday's oral arguments, questions from the justices focused less on which test to use ([link removed]) , and more on whether the wetlands on the Sackett's property should properly be considered "adjacent" ([link removed]) to the wetlands and Priest Lake on the other side of the road. Justices seemed unconvinced by the assertion that the presence of the road makes the wetlands no longer adjacent and showed hesitance to overturn decades of practice ([link removed]) . "Why did seven straight administrations not agree with you?" Justice Brett Kavanaugh asked, hinting that the Court may be hesitant ([link removed])
to overturn decades of precedent.
Quick hits


** Supreme Court case could narrow the scope of the Clean Water Act
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Washington Post ([link removed]) | New York Times ([link removed]) | E&E News ([link removed]) | Politico ([link removed])


** Interior Department law enforcement reforms include body camera requirement
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Washington Post ([link removed]) | E&E News ([link removed])


** Meet the Coloradans working to diversify the great outdoors
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Colorado Public Radio ([link removed])


** Heinrich introduces bill to finish the Continental Divide Trail
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Santa Fe New Mexican ([link removed])


** California drought pits farmers vs. cities. But neither is the biggest water victim
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Los Angeles Times ([link removed])


** Tribal leaders express support for bills to protect cultural, sacred sites
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Cronkite News ([link removed])


** Thawing permafrost threatens Alaskan Arctic drilling plans
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Grist ([link removed])


** Robert Redford: Supreme Court should not dishonor 50th anniversary of Clean Water Act
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USA Today ([link removed])
Quote of the day
” ...you can't protect a waterway without protecting the water that flows into it. That's common sense.”
—Robert Redford, USA Today ([link removed])
Picture this


** @nationalparkservice ([link removed])
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“Won't you join me for a little stroll through the slice of paradise I like to call…the town (park) where I currently am?” - Moira Rose

Fall is a great time to get out and enjoy spectacular views of changing leaves in national parks. Forests, woods, and shrublands turn a magnificent array of colors September through December each year depending on the climate and conditions. We hope you’ll at least RSVP as… pending? 🍂

Image: View of golden aspens at Great Sand Dunes National Park and Preserve, CO.
NPS/Patrick Myers @greatsanddunesnps ([link removed])

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