News
Supreme Court to take up a WOTUS case
The Supreme Court said they would hear one of the cases against the Waters of the U.S. rule. The high court will review the 9th Circuit’s ruling in the Sackett v. EPA case to determine if the lower court used the proper tests to determine if wetlands were truly “waters of the United States” under the Obama-era Clean Water Act.
Pacific Legal Foundation attorney Charles Yates tells Brownfield he’s hopeful the high court abandons the former Justice Anthony Kennedy’s “significant nexus” test and favors the definition from former Justice Antonin Scalia. “The Justice Scalia (interpretation) provides a lot more certainty, particularly as to wetlands because it clearly demarcates where the federal government’s authority begins and ends. Now, that’s one aspect of the certainty which we think the Supreme Court could provide here.”
If the EPA moves forward with yet another definition of Waters of the U.S. right now, Yates says it might be a wasted effort. “If the Biden Administration does proceed with the rulemaking without waiting for the much-needed guidance from the Supreme Court, it must be proceeding with the knowledge that the risk of that rulemaking could be all for naught.”
Yates is concerned the Supreme Court might not take the case until this October but says it could still make it onto the spring calendar.
Chantell and Michael Sackett family were told back in 2007 they could not build a home on their land which has no stream, creek, lake, or other body of water. They were threatened with 30-thousand-dollar a day fines if construction moved forward.
The Pacific Legal Foundation, which represents the Sackett family says the court will revisit a 2006 opinion issued in the Rapanos v. United States case where a divided court left unclear which wetlands are under the federal government’s jurisdiction.
(This story has been updated, and more about this topic is coming on Brownfield Ag News.)
