Supreme Court to hear high-stakes challenge to Clean Water Act

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WASHINGTON - Monday marks the first day of the Supreme Court’s new term, and the justices are wasting no time in weighing another challenge to one of the nation’s bedrock environmental laws.

The court will hear oral arguments Monday morning in a closely watched challenge to the Clean Water Act, passed in 1972 to protect all “waters of the United States”- including streams, rivers, lakes and wetlands - from harmful pollution.

Environmentalists fear the court’s conservative majority could dramatically narrow the law’s reach, undercutting the federal government’s ability to protect waterways - and the wildlife for which they provide critical habitat - across the country.

“This decision will be nothing short of a life-or-death sentence for coho salmon, razorback suckers, California tiger salamanders and hundreds of other endangered animals that rely on ephemeral and intermittently flowing streams and wetlands,” Hannah Connor, a senior attorney at the Center for Biological Diversity, said in a statement.

However, business groups and home builders have cheered the court’s decision to take the case. They argue that legal confusion over the definition of “waters of the United States,” or WOTUS, has created regulatory chaos for businesses and property owners.

“Without clear guidance from this Court, the Chamber’s members will continue to endure an expensive, vague, and time-consuming process whenever they need to determine whether a project or activity will impact waters subject to federal jurisdiction,” the U.S. Chamber of Commerce wrote in a brief.

The case comes after the Supreme Court ruled in June that the Environmental Protection Agency had overstepped its authority under the Clean Air Act to slash planet-warming emissions from power plants.


Here’s what to know about the Clean Water Act case and why it matters.


The case, Sackett v. Environmental Protection Agency, centers on a long-running dispute involving an Idaho couple named Chantell and Michael Sackett.

The couple began their lengthy legal battle in 2007, when they tried to build a home on their land near Idaho’s Priest Lake. The EPA determined that the property contained a wetland, and that the couple needed to obtain a Clean Water Act permit or face heavy fines.

The Sacketts, who are represented by the conservative Pacific Legal Foundation,have won at the Supreme Court before. This time, they’re calling on the justices to significantly narrow the definition of “waters of the United States” so that their property - and others like it - would not be subject to the Clean Water Act.

In the famously muddled 2006 case Rapanos v. United States, the justices split 4-1-4 over which test courts should use to determine what constitutes “waters of the United States.”

Under the test proposed by then-Justice Anthony M. Kennedy, a wetland must have a “significant nexus” to regulated waters. Federal courts have favored this interpretation, which informed the Obama administration’s Clean Water Rule.

Under the narrower definition proposed by then-Justice Antonin Scalia, a wetland must have a “continuous surface connection” to regulated waters. Business groups such as the Chamber of Commerce and National Association of Home Builders favor this interpretation, which informed President Trump’s Navigable Waters Protection Rule.

A federal court has since struck down Trump’s rule. The Biden administration is planning to issue a new regulation.

‘A major rewrite’

Mark Ryan, a Clean Water Act expert who worked as a lawyer at the EPA for 24 years, said he thinks at least five conservative justices could vote to adopt Scalia’s narrower test.

“Reading the tea leaves of the Supreme Court is always a dangerous venture,” Ryan said. “But I would predict a 5-4, if not a 6-3, adoption of something in line with the Scalia standard from the Rapanos decision, which would be a major rewrite of the Clean Water Act.”

Damien Schiff, a senior attorney at the Pacific Legal Foundation who will argue the case on Monday, said he is “quietly optimistic” that the Sacketts will prevail. He noted that Chief Justice John G. Roberts Jr. signed Scalia’s opinion in Rapanos, while Justice Neil M. Gorsuch signaled in the Clean Air Act case that he is “skeptical of broad EPA interpretations of statutes.”

Jon Devine, who leads the Natural Resources Defense Council’s federal water policy team, said the adoption of Scalia’s test could remove Clean Water Act protections for roughly 19 percent of streams and 51 percent of wetlands in the country.

“That would be catastrophic,” he said, “for the water quality purposes of the act.”

Oral arguments in Sackett v. EPA begin at 10 a.m. Eastern time on Monday.

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The Washington Post’s Vanessa Montalbano contributed to this report.