"The test that the federal government has used to determine what waters and wetlands are protected under the Clean Water Act seems poised to be scrapped by the US Supreme Court, natural resources lawyers said.
The justices mainly wrestled with the definition of the word “adjacent” as they heard oral arguments on Monday in Sackett v. EPA, which focuses on what streams and wetlands qualify as federally protected waters of the US—or WOTUS—under the Clean Water Act. Congress didn’t define “adjacent,” which appears in a parenthetical in US code, when it updated the law in 1977.
Then-Justice Anthony Kennedy’s “significant nexus” test outlined in the court’s fractured 2006 ruling in Rapanos v. U.S. aimed to clarify the adjacency question. The idea meant that any pollution or development causing pollution in a tributary of a navigable river or lake would affect the biology and chemistry of the larger water body.
“I just don’t see five votes for the significant nexus test,” said Jeff Porter, chair of the environmental law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC. “The real question is what will replace it.”"
Bobby Magill reports for Bloomberg Environment October 4, 2022.
SEE ALSO:
"SCOTUS Floats New Clean Water Act Test. Lawyers ‘Cringe.’" (E&E News)
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