Supreme Court to review which wetlands get federal water protections

The Supreme Court will review the question of which wetlands get protections under the Clean Water Act, a case with implications for water pollution and business operations. 

The court on Monday agreed to take up the question of what legal test should be used to determine whether certain wetlands are protected under the federal law.

At issue is the case of Michael and Chantell Sackett, who, in 2007, started to build a home on a vacant lot that they own. The Sacketts had obtained local permits for the construction, but the Environmental Protection Agency (EPA) determined at the time that the activity was a violation of the Clean Water Act because the lot contains wetlands that qualify for protections.

Last year, the 9th Circuit appellate court ruled against them, applying an opinion penned by former Supreme Court Justice Anthony Kennedy, which said that which wetlands are regulated should be determined by whether they have a “significant nexus” with traditionally regulated waters like lakes and rivers. 

But that “significant nexus” test came from a 2006 case, and was the concurring opinion to another, narrower test, set up by then-Justice Antonin Scalia. Scalia’s test would have applied only to wetlands with a continuous surface-level connection to traditionally regulated bodies. 

The Supreme Court decided to take up the question of whether the appeals court was right to use Kennedy’s test rather than Scalia’s.