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On the first day of its new term, the U.S. Supreme Court heard oral arguments in Sackett v. Environmental Protection Agency, a case with the potential to restrict the scope of the Clean Water Act. Recently, the Supreme Court has ruled in favor of narrowing the scope of other environmental protection laws, as it did in West Virginia v. EPA, which relied on the "major questions doctrine" to prevent the EPA from regulating carbon emissions from power plants under the Clean Air Act. Depending on what the Court decides, up to 80 percent of streams in the southwestern U.S. 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., 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 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 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 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 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 — 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, and more on whether the wetlands on the Sackett's property should properly be considered "adjacent" 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. "Why did seven straight administrations not agree with you?" Justice Brett Kavanaugh asked, hinting that the Court may be hesitant to overturn decades of precedent.
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...you can't protect a waterway without protecting the water that flows into it. That's common sense.”
