The Supreme Court’s decision today to take a fresh look at the scope of the Clean Water Act could impair EPA’s ability to protect isolated wetlands and ephemeral and intermittent streams.

It’s the latest brawl the high court has agreed to tackle with the potential to reshape national environmental policy.

“They very well could address this whole issue fresh, what we call de novo, look at it in light of what the language of the statute really means,” said Larry Liebesman, a senior adviser at Dawson & Associates, a consulting firm that specializes in permitting. “With a 6-3 majority conservative, there’s a fair chance they may come out with a ruling that’s a lot closer to the Scalia interpretation.”

Former Justice Antonin Scalia concluded in a famous court decision that “waters of the U.S.” should only include relatively permanent, standing or continuously flowing bodies of water because, according to him, that aligned with the Webster’s Dictionary definition (E&E News, May 15, 2017).

The challengers in Sackett v. EPA — Chantell and Michael Sackett — have been fighting for years for the right to build on their Idaho land without securing a costly federal permit.

In 2012, the Supreme Court sided with the couple in their battle for judicial review of an EPA order that stopped them from building a house on their land and threatened fines of more than $30,000 a day.

In a short order this morning, the justices agreed to consider whether the 9th U.S. Circuit Court of Appeals erred when it affirmed that the federal government has permitting authority over the Sacketts’ property near Priest Lake in northern Idaho (Greenwire, Jan. 24).

“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, in a statement today. He continued: ”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 Supreme Court only takes up a tiny fraction of the petitions that come before it, and the justices’ surprising decision to get involved in the Sacketts’ case could throw a wrench into EPA’s planned rulemaking defining what are “waters of the U.S.,” or WOTUS.

EPA in a statement said that it cannot comment on pending litigation, but the agency remains committed to establishing a “durable” definition of WOTUS that’s informed by a “diverse perspectives and protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.”

It is the second major environmental rule that the Biden administration will write in tandem with Supreme Court review.

EPA is planning a similar approach on its forthcoming carbon rule, despite the justices’ stunning move in a separate fight to weigh in on EPA’s Clean Air Act authority to regulate emissions from existing power plants (Greenwire, Nov. 2, 2021).

The Sacketts’ dispute centers on the Supreme Court’s muddled 4-1-4 ruling in Rapanos v. United States in 2006 that resulted in two competing tests for defining jurisdictional waters.

The Supreme Court could simply analyze whether the 9th Circuit used the correct test to determine WOTUS in light of Rapanos, which has resulted in years of confusion for the regulated community.

But what’s more likely, legal observers say, is that the court lines up its existing majority of conservative justices to rule that a more restrictive interpretation should be the law of the land.

Continue reading the article from E&E News here.