Lawyers: High court likely to reject its and EPA's definitions of 'waters of the U.S.,' but which wetlands will be regulated?

Chantell and Michael Sackett erected these signs early in their
dispute with EPA. (Photo by Keith Kinniard, The Associated Press)

The U.S. Supreme Court not only seems likely to throw out the latest effort to define the meaning of "waters of the United States," the key jurisdictional phrase in the Clean Water Act, it will probably abandon its current jurisprudence on the WOTUS issue when it comes to wetlands.

So said lawyers on both sides Monday after the court heard oral arguments in Sackett v. EPA, in which an Idaho couple is fighting the Environmental Protection Agency's effort to make them protect or replace a wetland on property where they have wanted to build a home for 15 years.

"The court’s fractured 2006 ruling" written by then-Justice Anthony Kennedy allowed EPA to regulate wetlands with “significant nexus” to the nation's navigable waters, on the logic 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," reports Bobby Magill of Bloomberg.

“I just don’t see five votes for the significant nexus test,” Jeff Porter, chair of the environmental law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, told Magill. “The real question is what will replace it.” Wetland protection has implications for developers and farmers.

The high court "searched for a way to clarify which wetlands near federally protected waters fall under federal jurisdiction," Magill reports, "Justice Sonya Sotomayor asked if another test could be used that is more precise than the significant-nexus test. Her questioning offered a clue that the 'significant nexus test is likely gone,” said David Smith, a partner at Manatt, Phelps and Phillips.' The court appears to be pivoting toward using adjacency as one of the ways to define WOTUS, he said."