Supreme Court will likely settle the definition of Waters of the United States once and for all (Sackett v EPA)

Politics
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https://www.supremecourt.gov/docket/docketfiles/html/public/21-454.html

Second link is to the Supreme Court docket for case 21-454.

Issue: Whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7).

Plain English summary of the case at the above link.

Essentially, Michael and Chantelle Sackett have been attempting to build a house on property near Priest Lake in Idaho, but have been told by the EPA that a permit is required since their property contains wetlands that are considered navigable waters of the United States.

In 2006, in Rapanos v United States, summary at the above link, the Supreme Court limited the Federal Government’s jurisdiction under the Supreme Court. It was a five to four ruling, Roberts, Scalia, Kennedy, Thomas and Alito in the majority and Stevens, Souter, Ginsburg and Breyer dissenting.

However, the crucial split was between Scalia, joined by Roberts, Thomas and Alito and Justice Kennedy, writing alone.

Justice Scalia’s plurality opinion required a direct surface connection between navigable waters and adjoining waters or wetlands, before those could be brought under Federal Government Jurisdiction.

Justice Kennedy’s concurrence called only for a significant nexus between navigable waters and adjoining waters or wetlands.

While some lower courts have adhered to Scalia’s standard, others have adhered to Kennedy’s much looser and downright nebulous standard, including the Ninth Circuit.

Fortunately, the Supreme Court has taken this case and taken in a way that assures they will answer this question definitively.

I believe they will adopt Scalia’s standard and let the Sackett’s proceed with their construction. They will settle the Waters of the United States political football once and for all.

No more will we have to deal with incoming Democratic administrations increasing the scope of the Waters of the United States, while incoming Republican administrations promptly reverse and decrease the scope. :smile:

I look forward to seeing a victory for the Petitioner Sacketts and a posthumous vindication of Justice Scalia.

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Welcome back! I missed you. :hugs:

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Thanks.

:smile:

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The navigable waters of the US clause has been a mess since Bush 41.

Now I am here considered a lefty lefty left left… but in reality my opinion this has been a poorly written regulation since the 90’s.

This was a thing that I agreed with Trump on… because even though the protections of wetlands and clean water is in the interest of everyone,… the Constitution prohibits the taking of public good without just compensation.

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Wetlands and navigable waters are two entirely different issues.

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They aren’t though when it comes to wetlands regulations

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And for those who want to disagree with me just because I am on the other side

My very conservative father made a lot of money in real estate understanding the wetlands rules in the clean water act from Bush 41 and he has always thought that the regulations were poorly written and I agree with him.

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Actually, the regulations for each are very different.

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Oh, the stories I could tell from my EPA years.

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No. Since the clean water act from the Bush 41 administration, the navigable water portion has been what has been exploited to expand regulation over what is and isn’t considered a wetland.

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The specific regulations are very different. Wetlands include ground that you can stand on in your bedroom slippers and not get your feet wet. They have zero to do with navigability.

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Nope.

They don’t.

And that is the problem.

And I don’t know why you are fighting me on this one.

We likely agree

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You’re missing his point.

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I’m not fighting you, I am correcting you. There is very little correlation between navigable water regulations and wetland regulations.

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The whole enforcement of the wetlands provision of the Clean Water act is entrenched in the concept of the Government’s right to regulate navigable Waters.

It is even brought up in the case that is in the OP.

So yeah…

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Okay, so what do you think his point is? Perhaps you can articulate it better than he.

As an engineer (ret.) who has managed scores of highway projects through the design process, I am very familiar with both wetlands and navigability regulations. They are completely different and are even enforced by different Federal Agencies. The COE may cite the waters they are concerned with being affected by adjacent wetlands as “navigable” but they are not using navigable waters regulations to do so. To coin a phrase, “that’s just the COE being the COE.” The environment arm of the COE is perhaps the worst Federal Agency (the F&W being a close contender) to deal with both for the public and State entities,

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As I just told Sneaky, just because the COE says that’s their reasoning, does not mean the navigability regs are the actual reason. The COE is a power hungry organization who will resort to almost any shenanigan to hold and expand their power.

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That literally makes no sense.

It is the rule that gives them the power to regulate wetlands.

It was part of the definition that makes it defined as Waters of the United States.

This has been going on since the 90’s

It is what they are going to court about.

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No it’s not. The COE is saying that, but the navigability rules do not demand it.

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Well I guess everyone is wasting the Supreme Court’s time and energy.