The US Supreme Court agreed Jan. 24 to review a court case that could redefine the jurisdiction of the Clean Water Act, especially in regard to isolated wetlands.
The case could have ramifications for oil and gas companies operating on private lands where the Environmental Protection Agency (EPA) and the US Army Corps of Engineers may at times assert a disputed authority to regulate activities that could affect nearby water bodies.
The jurisdiction issue can affect such oil industry responsibilities as pipeline routes and spill prevention control and countermeasures, said Lee Fuller of the Independent Petroleum Association of America (IPAA).
The case is Sackett v. EPA, brought to the court by a married couple who have been trying for 15 years to build a home in a housing development near Priest Lake, Idaho, only to be frustrated by EPA because their property is near a wetland that drains into the lake.
EPA insists the Sacketts need approval from the Corps of Engineers to build on their land, and the US Court of Appeals for the Ninth Circuit agreed in August, accepting EPA’s test to determine whether the couple’s land can have an impact on the quality of water in the nearby wetland and the lake, a tricky subject that includes determining whether the couple’s lot is itself part of the wetland.
The Supreme Court said it granted review to determine “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ 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, in a statement issued after the Supreme Court agreed to take the case. His foundation 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,” Schiff said.
Regulations to be revised
The Trump administration tried revising the regulations, but a federal court ruling blocked those changes, and the Biden administration is in the process of revising the regulations to return to what it calls the pre-2015 rules, with updates to take into account court rulings since then. The public comment period on the Biden EPA’s proposal (jointly developed with the Corps of Engineers) will end Feb. 7.
The Clean Water Act mandates that the federal government protect the “chemical, physical, and biological integrity of the nation’s waters.” As for jurisdiction, the law says it is intended to protect “navigable waters,” which means the “waters of the United States.” But it does not define its terms.
It has been accepted since the 1985 Supreme Court ruling in US v. Riverside Bayview Homes Inc. that wetlands adjacent to a navigable river are jurisdictional because of their close ecological interconnection with the river. That leaves much unresolved—such as wetlands that are not adjacent, or land like the Sacketts’ lot.
In 2006, in Rapanos v. United States, the court fractured over the jurisdictional issue. A plurality of four justices agreed that a continuous surface water connection to navigable waters should determine jurisdiction. A fifth justice, Anthony Kennedy, wrote that jurisdiction should hinge on a “significant nexus” analysis of the ecological connections between a location and a jurisdictional water body.
“Ever since then we’ve been fighting over significant nexus and what it meant,” IPAA’s Fuller said.
The court will be revisiting the Rapanos case as it considers the Sackett case, according to Pacific Legal Foundation. The foundation, often arguing for property owners, hopes to see the current court majority adopt the plurality opinion in the Rapanos case.
