U.S. Supreme Court Will Hear Case Defining Clean Water Act

Last week, the U.S. Supreme Court agreed to review a case considering which wetlands are protected under the Clean Water Act (CWA). The case has implications for water pollution and for business operations.

As the law firm Bricker and Eckler, LLP explained, the applicable legal standard for determining whether a particular wetland or other waterbody constitutes a “water of the United States” (WOTUS) under the CWA has been murky for more than 15 years. Rulemakings under both the Obama and Trump administrations took varying approaches, and the Biden administration is currently developing its own rulemaking to define WOTUS.

The firm said, “The constantly changing definition has created significant confusion and uncertainty for the regulated community and has been compounded by decisions from the courts stemming from ever-present litigation of the same topic.”

Hopefully this case will provide some clarity.

The case involves Michael and Chantell Sackett who sought to build a home in 2007 on a piece of property that they owned. The couple obtained local permits, but the Environmental Protection Agency (EPA) determined that the activity was a violation of the CWA because the lot contains wetlands that qualify for protections.

The 9th Circuit Court of Appeals ruled against the Sacketts in 2021. The Supreme Court will hear the Sacketts appeal to that ruling — but probably not until after October 2022 when the next session of the court commences after a summer break.