In his decision in Rapanos, Justice Antonin Scalia, writing for himself and three conservative members of the court, said that the EPA has oversight of “relatively permanent” surface waters that connect to larger bodies. While four other justices argued the agency had wide discretion to determine which bodies were protected, Justice Anthony M. Kennedy wrote a concurring opinion that fell between the two, finding that waters with a “significant nexus” could be regulated under the CWA.
In the years since courts have held that the EPA’s jurisdiction over wetlands can be established under either Kennedy’s or Scalia’s standard. The 9th Circuit’s decision in the Sackett case was based on the application of Kennedy’s standard, which led the Sacketts to appeal.
Damen Schiff, an attorney at the Pacific Legal Foundation and lead counsel for the Sacketts, said the issue is a matter of congressional authority and that the authors of the CWA did not explicitly extend regulation to wetlands when the law was passed in 1972.
“Even then, Congress recognized that wetlands are not the same thing as waters,” Schiff said at an event hosted by the Heritage Foundation. “In our briefing in the Supreme Court we cite a few federal laws that were passed in the decade or so leading up to the Clean Water Act, where Congress clearly distinguishes between types of waters and other features such as wetlands.”
Groups including the Chamber of Commerce and the American Petroleum Institute have backed the Sacketts in the case, citing a need for regulatory certainty under a narrow definition and urged the court to set a unifying precedent.