The Supreme Court will take another shot at deciding the scope of the Clean Water Act, granting a petition to determine whether the U.S. Court of Appeals for the Ninth Circuit "set forth the proper test for determining whether wetlands are 'waters of the United States'" under the CWA.

The court issued its decision Monday in an order list that once again did not include a decision on a petition from the National Pork Producers Council and American Farm Bureau Federation seeking review of California’s Proposition 12, which bans the sale of pork from animals whose sows do not have minimum housing requirements.

The CWA petition involves a long-running dispute between two Idaho landowners and EPA over an area of their property deemed wetlands by the agency. Chantell and Michael Sackett were victorious in 2012 when the high court ruled that they could challenge EPA’s compliance order requiring restoration of the purported wetlands.

EPA withdrew the compliance order, but the 9th Circuit went ahead and issued a decision in August affirming EPA’s wetlands determination. The Sacketts, saying the order could be reissued at any time, filed a new petition seeking review of the Supreme Court’s fractured Rapanos decision in 2006, which lower courts have interpreted as adopting a “significant nexus” test outlined by former Justice Anthony Kennedy to determine whether waters can be regulated under the Clean Water Act.

“The Sacketts’ ordeal is emblematic of all that has gone wrong with the implementation of the Clean Water Act,” said Damien Schiff, a senior attorney at Pacific Legal Foundation, which represents the Sacketts. “The Sacketts’ lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting. The Sacketts are delighted that the court has agreed to take their case a second time, and hope the court rules to bring fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”

The Sacketts have the support of 21 states, the U.S. Chamber of Commerce, the National Association of Home Builders and a handful of conservative legal foundations, including PLF. No agricultural groups, however, filed amicus briefs backing the Sacketts, who contend Rapanos should be read as requiring a “continuous surface water connection” to demonstrate jurisdiction.

EPA had urged the court to deny the petition, again citing the lack of a conflict in the Circuit Courts of Appeals. The agency also disputed the Sacketts’ reading of Rapanos, noting that in Kennedy’s “significant nexus” test, he “concluded that wetlands have such a nexus when they, ‘either alone or in combination with other similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.’”

The Sacketts’ wetlands meet that test, EPA said. “The court of appeals found ample evidence that the wetlands on petitioners’ property are similarly situated to the Kalispell Bay Fen across the road and that, together, those wetlands ‘significantly affect the integrity of Priest Lake.’”

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The Prop 12 law went into effect on Jan. 1, but pork currently in storage can still be sold. Producer groups have asked the state to delay the effective date of the regulations for two years, which California has said it cannot do.

NPPC contends that compliance with Prop 12 “will cost individual farmers millions of dollars” and could potentially “drive smaller hog farmers out of business and undermine the overall global competitiveness of the U.S. pork industry.” Twenty states have backed the groups’ petition, which sought review of a Ninth Circuit Court of Appeals decision upholding the law.

The petition also has the support of the National Association of Manufacturers and National Cattlemen’s Beef Association. In addition, pork producer groups and state farm bureaus from Iowa and Minnesota backed the petition, as did the Minnesota AgriGrowth Council backed the NPPC/AFBF petition.

On the other side is the state of California, which is backed by the Humane Society of the U.S., Animal Legal Defense Fund, Animal Equality, The Humane League, Farm Sanctuary, Compassion in World Farming USA, and Animal Outlook.

The petitioners and their supporters argue the law violates the “dormant Commerce Clause” by imposing requirements on operators outside of California. Nearly all — 99.87% — of the pork consumed by Californians comes from outside the state, where compliance with Prop 12 will cause an “excessive burden,” NPPC and AFBF said in their petition.

The 9th U.S. Circuit Court of Appeals ruled 3-0 for the state and against NPPC and AFBF in July, finding that “for dormant Commerce Clause purposes, laws that increase compliance costs, without more, do not constitute a significant burden on interstate commerce.” 

In June, the Supreme Court denied a similar petition filed by the North American Meat Institute challenging Prop 12.

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