Supreme Court takes up case that could limit federal government’s jurisdiction over wetlands

By Rachel Ramirez, CNN

The Supreme Court agreed on Monday to take up a case that could limit the federal government’s jurisdiction over wetlands protected under the Clean Water Act.

The case comes as the Biden administration is actively redefining the boundaries of the waters of the US in an effort to undo Trump-era rollbacks to federal protections.

The petitioners in the case, Michael and Chantell Sackett, are asking the court to revisit a 2006 decision that resulted in two ways of interpreting where the Clean Water Act’s domain ends. The Sacketts argue that the plurality opinion in that case, led by the late conservative Justice Antonin Scalia, concluded that the law’s requirements encompasses actual navigable waters and wetlands only with a “continuous surface connection.”

The Sacketts’ attorneys say if the justices decide to back Scalia’s narrower test of wetlands, the couple could avoid obtaining costly federal permits to build on their property.

In the 2006 case, former Justice Anthony Kennedy wrote a separate concurring opinion that concluded the rule should apply to wetlands that have a “significant nexus” to surrounding waters, where changes to those wetlands would have an impact on nearby waters, even if they aren’t directly connected.

Kennedy’s test for determining covered wetlands was the broader of the two, and federal courts have favored it in rulings on the jurisdiction of the Clean Water Act.

The Environmental Protection Agency in December proposed a rule that would expand the waters protected by the Clean Water Act in an effort to undo Trump-era rollbacks. The agency proposed reverting to a broader, Obama-era definition of the Waters of the US, or WOTUS, which the Clean Water Act can be applied to. The public comment period on that proposal ends on February 7.

Legal experts have questioned whether the Supreme Court should weigh in on Sackett v. EPA while a new definition is still being crafted.

Pat Parenteau, a professor at Vermont Law School, told CNN that the new rules likely won’t be the final word, and litigation against the Biden administration is sure to follow.

“The practical effect of all this back and forth is that more wetlands and streams are now protected than was the case under the Trump rule,” Parenteau said. “But the controversy has not gone away and there is sure to be much more litigation with the prospect for conflicting judicial opinions.”

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CNN’s Devan Cole contributed to this report.