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After the Supreme Court’s decision in West Virginia v. Environmental Protection Agency, administrative law experts again asked the perennial question: Is Chevron deference dead? Although we may not have a definitive answer for some time, the upcoming Supreme Court term promises more fodder for the discussion.
Consider Sackett v. EPA, scheduled for argument on October 3. In Sackett, the Court is asked to clarify when wetlands are “waters of the United States” for the purposes of Clean Water Act (CWA) jurisdiction. The Environmental Protection Agency (EPA) has asserted jurisdiction over a portion of the Sacketts’ land that is separated from a lake on the surface but is connected to the lake below the surface.
The Sacketts ask the Court to adopt a version of a test used by a plurality of the Court in its 2006 Rapanos v. United States decision. As the Sacketts describe Rapanos, wetlands are within the jurisdiction of the CWA only when they have a continuous surface connection to other regulated waters.
The United States seeks an alternative, broader test proposed in Justice Kennedy’s Rapanos concurrence. In this view, wetlands adjacent to regulated waters can themselves be regulated even without a surface connection to regulated waters, provided they have a “significant nexus” to them.