“Years of politicized agency rulemaking has capriciously expanded and redefined what constitutes a ‘water of the United States.’ It’s time for a narrow, clear definition that follows the statutory text and Supreme Court precedent.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the U.S. Supreme Court not to defer to federal agencies when undertaking the core function of the judiciary—interpreting the law. The case asks the Court to revisit its 2006 decision in Rapanos v. United States, which held that the Clean Water Act (CWA) does not regulate all wetlands but failed to muster a majority opinion for the proper jurisdictional test. WLF joined the Cato Institute, Associated General Contractors of America, Mountain States Legal Foundation, and NFIB Small Business Legal Center on the amicus brief.

The case arises from a lawsuit by Michael and Chantell Sackett, who want to build a home on their Idaho property. But the EPA has determined that any construction on that land would violate federal law because the lot contains wetlands that qualify as “waters of the United States” under the CWA. In 2012, the Supreme Court unanimously agreed that the Sacketts could immediately challenge the EPA’s finding in federal court. They now ask the Court to adopt a test proposed by a four-justice plurality in Rapanos that would allow a wetland to be regulated only if it has some continuous surface-water connection to navigable waters.

In its amicus brief supporting the Sacketts, WLF explains that the task of divining congressional intent from statutory text belongs to the Court, not to federal agencies who lack such expertise. This is especially true for “major questions” of economic and social significance, such as the jurisdictional reach of the CWA. Only the Supreme Court can provide a stable, workable definition of “waters of the United States” that honors the statutory text and Supreme Court precedent.