This article explains the areas of contention in the Clean Water Act and the potential for the Supreme Court to modify it.
At Issue: A Desire to Build on a Designated Wetland, the SCOTUS will grapple over whether a long-standing test for federal jurisdiction over tributaries to large streams and rivers is constitutional. The case involves Chantell and Michael Sackett of Idaho, who have been attempting for more than 15 years to build a house on land the federal government says includes federal waters.an undeveloped lot 300 feet from Priest Lake, a large lake near the US/ Canada border in the Idaho panhandle.
In the newly contested version of the case, however, the SCOTUS may revert to a previous, pre-scientific proof argument, called a “nexus test.” That test ascertains whether a direct surface water connection betweenand navigable waters exists in order for wetlands to be considered federally protected waters.
A distinction as specific as whether an artificial barrier — such as a road — severs jurisdiction of a wetland on one side from a clearly protected water on the other side will likely come under questioning. A roadway on the Sacketts’ property is an issue in whether the waters there are protected, and it’s possible that even the most restrictive test may allow those waters to keep those protections.
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