Supreme Court Will Review Scope of “Wetlands” Under the Clean Water Act

On Monday, January 24, 2022, the Supreme Court granted certiorari to answer one question: whether the Ninth Circuit Court of Appeals used the proper test to determine if wetlands are “waters of the United States” under the Clean Water Act (“CWA”).

The case first began in Idaho when two landowners were told to obtain a CWA permit from the Environmental Protection Agency (“EPA”) before building a house on their property. The landowners argued the lot they wanted to build a house on lacks a surface water connection to any body of water and therefore should not be subject to CWA permit requirements. After much litigation, a Ninth Circuit panel of judges ruled for the EPA and applied Justice Anthony Kennedy’s test from Rapanos v. United States that casts a wider net on jurisdictional waters under the CWA.

The SCOTUS review will pit Justice Kennedy’s broader jurisdictional view against Justice Antonin Scalia’s narrower plurality opinion from Rapanos. The Supreme Court decision is expected to address which test governs wetlands and whether the Sackett’s property is subject to federal regulation under the CWA. The case is Michael Sackett et al. v. U.S. Environmental Protection Agency et al., Case No. 21-454, in the Supreme Court of the United States.