Supreme Court to review WOTUS issue

The Supreme Court could issue a new decision outlining the scope of Clean Water Act jurisdiction by this summer. The court announced Monday it will review a decision from the 9th U.S. Court of Appeals that accepted former Supreme Court Justice Anthony Kennedy’s test in the Rapanos case in 2006. That was a split decision that wetlands and other waters fall under federal jurisdiction if they possess a “significant nexus” to navigable waters. The petition was filed by an Idaho couple, Chantell and Michael Sackett, who dispute EPA’s determination that an area of their property is wetlands. The Biden administration moved to scrap the Trump-era Navigable Waters Protection Rule (NWPR), which abandoned the “significant nexus test,” and instead largely adopted the approach detailed by Justice Scalia in the Rapanos case. The administration has proposed rolling back WOTUS to an updated version of its pre-2015 definition — to include waters with a significant nexus to traditionally navigable waters — while the agency works on a broader rewrite in a second rulemaking. The outcome of the Sackett’s case could have major implications for the ongoing WOTUS rulemakings.

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