The Supreme Court of the United States will review Sackett v. EPA. At issue is the definition of a wetland previously based on the “significant nexus” test as advanced by Justice Anthony Kennedy in 2006. He considered that any wetland with an impact on nearby waters, even if there was no direct or continuous connection would be governed under the Clean Water Act.  This was the basis of the EPA overreach in expanding the Clean Water Act to allow broader jurisdiction under the Waters of the United States (WOTUS) Rule.

In the upcoming case, Michael and Chantell Sackett are requesting relief from onerous regulation and adoption of the opinion expressed by the late Justice Antonin Scalia that the law applies only to waters with a continuous surface connection to a navigable stream or river. This would constrain the EPA from regulating limited areas of wetlands that occur on farmland and in some residential areas.  The outcome could be pivotal in facilitating farming operations and development since in the absence of a “continuous surface connection” it would be unnecessary to obtain federal permits for agricultural operations and construction.