Supreme Court Can and Should Resolve ‘Waters of the United States’ Issue

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Heritage Foundation

For decades, there has been major confusion regarding what waters are regulated under the Clean Water Act.

The United States Supreme Court can change this by agreeing to hear a case brought by the Pacific Legal Foundation. In its petition asking the court to hear the case, Sackett v. Environmental Protection Agency, the Pacific Legal Foundation presents a simple question: Should Rapanos v. United States be revisited to adopt the plurality opinion’s standard for regulated wetlands?

 

In 2006, the late Justice Antonin Scalia in Rapanos provided much-needed clarity on what waters are covered under the Clean Water Act, and specifically what waters, including wetlands, should be considered “waters of the United States” (informally known as WOTUS) under the Clean Water Act. This definition is extremely important because it clarifies what waters the EPA and the U.S. Army Corps of Engineers have jurisdiction over under the law.

 

Unfortunately, Scalia’s opinion in Rapanos was a plurality opinion, not getting the necessary five votes for a majority. As a result, the Supreme Court wasn’t able to provide the clarity it could have 15 years ago.

 

Now the Supreme Court gets a chance to fix this. And it is something that definitely needs to be fixed.

 

Private property owners remain confused as to what waters are regulated because the EPA and the U.S. Army Corps of Engineers have been all over the place when it comes to defining WOTUS.