In late January, the Supreme Court of the United States (SCOTUS) announced the cases it will consider in its upcoming term.
One of these cases is Sackett v. US EPA, in which the Supreme Court will consider if the lower court (Ninth Circuit) used the proper test for determining if certain wetlands are “Waters of the United States” (WOTUS).
The Ninth Circuit determined that the wetlands on Sackett’s land were jurisdictional based on Justice Kennedy’s “significant nexus” test. This test was developed in a prior Supreme Court case (Rapanos). In the Rapanos case the Supreme Court did not have a clear majority decision and split with a 4-4-1 decision. The Sacketts have asked the Supreme Court to consider if another test, “relatively permanent continuous surface connection”, should be used instead of the “significant nexus test”. The “relatively permanent continuous surface connection” was developed by the plurality decision in Rapanos.
The Supreme Court could limit the jurisdiction of the Clean Water Act (CWA) if it sides with the Sackett family. Either way, the outcome will affect current EPA and USACE efforts to draft a revised WOTUS rule, and will impact how the State of Colorado approaches future regulations under the control of the Colorado Department of Public Health and Environment’s Water Quality Control Division.
Of course, the makeup of the Supreme Court has changed since the Rapanos decision and Justices who are viewed as conservative now hold a majority of seats on the Supreme Court.