Supreme
Court to Hear Case that May Resolve
Contentious WOTUS Issue
The U.S. Supreme Court on Jan. 24 said it will consider a case that may resolve the long battle over the Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ definition of waters of the U.S. (WOTUS), Bloomberg Law reported.
The case involves Chantell and Michael Sackett of Idaho, who have been attempting since 2007 to build a house on land that the federal government said includes federal wetlands that are subject to Clean Water Act (CWA) jurisdiction. The Supreme Court will likely hear the case in the term beginning in October.
The news comes just weeks after the Corps and EPA on Jan. 5 announced that they had halted implementation nationwide of the Navigable Waters Protection Rule (NWPR), the Trump-era WOTUS standard that drastically scaled back the types of waters falling under CWA jurisdiction.
Until further notice, the two agencies said they will instead rely on WOTUS standards in place prior to a 2015 framework developed under the Obama administration to expand CWA jurisdiction. The Corps also said that any permitting decisions made after an Aug. 30, 2021, decision by the U.S. District Court for the District of Arizona to vacate the NWPR may be modified, suspended, or revoked.
Under the Biden administration, EPA and the Corps announced last June (GM June 11, 2021) that they intended to draft yet another WOTUS definition that builds upon the pre-2015 rule, the Obama-era rule, and the Trump-era NWPR.
On Nov. 18, 2021, the agencies announced the signing of a proposed rule to do just that, putting back in place the pre-2015 WOTUS definition, but updated to reflect consideration of Supreme Court decisions, along with input from states, tribes, local governments, and a broad array of stakeholders. A public comment period on the proposal concludes on Feb. 7.
Questions about the federal government’s ability to broadly define WOTUS have remained contentious since the high court failed in 2006 to definitively answer the question in Rapanos v. U.S., and instead produced two different standards for deciding what constitutes WOTUS.
In that decision, four judges, led by the late Justice Scalia, concluded that navigable waters and wetlands with a “continuous surface connection” should be subject to CWA regulation. Justice Kennedy, however, wrote a separate concurring opinion indicating that wetlands should be regulated if they have a “significant nexus” to navigable waters and would potentially affect them, even if they aren’t directly connected.
It was Kennedy’s “significant nexus” standard that drove the 2015 WOTUS redefinition, which was almost immediately challenged by 31 states and numerous stakeholders in multiple lawsuits, prompting the Sixth Circuit in October 2015 to issue a nationwide stay (GM Oct. 19, 2015). That stay was lifted in January 2017, when the U.S. Supreme Court determined that review of the rule falls within the jurisdiction of the district courts.
The Trump administration then tried to delay the 2015 rule’s compliance deadline while it worked on a new version (GM June 30, 2018) that hued more closely to the Scalia WOTUS definition, but those delays were challenged in court (GM Aug. 24, 2018). Subsequent decisions by a number of U.S. district courts left a patchwork of enforcement, with the 2015 rule enjoined in 28 states and in effect for the remaining 22 states.
The Trump administration then announced in September 2019 that it was repealing the 2015 rule (GM Sept. 13, 2019) entirely and replacing it with the NWPR, which was heavily criticized by environmental groups. Both The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) were strong supporters of the NWPR upon its publication in 2020 (GM Jan. 24, 2020), and were highly critical of the 2015 rule.
“We’ve supported the NWPR in the past and we continue to do so,” ARA President and CEO Daren Coppock told Green Markets on Jan. 27. “The changes made in how wetlands are delineated are much easier to understand and implement for landowners, and we believe they are more consistent with Congressional intent in the Clean Water Act than the 2015 rule was. What we really need is durable certainty. This ping-pong game between different administrations and federal courts makes it impossible to plan for the long-term.”
Several ag and environmental groups testified during a WOTUS hearing on Capitol Hill on Jan. 18, also pressing for clarity in the definition. “We as farmers support clean water, but we also need clear rules so that we can do what we do best, and that’s produce food, fiber, and fuel,” Missouri Farm Bureau President Garrett Hawkins said during the hearing.
“The Clean Water Act simply doesn’t allow the agencies to insert themselves into local and farmer land-use decisions in the manner that was proposed” in the 2015 definition, said National Corn Growers Association President Chris Edington during testimony. “There is a limit under the CWA to the direct federal control over land-use decision and policies.”
Several legal experts contacted by Bloomberg Law said the Sackett case now before the Supreme Court case may, in fact, resolve the WOTUS definition once and for all. “The decision to take this case is an earthquake,” Neal McAliley, an attorney with the Miami office of Carlton Fields P.A., told Bloomberg Law. “The Supreme Court is likely to resolve the scope of the waters of the U.S.”
Many environmentalists fear that the high court’s conservative majority will significantly limit the scope of federal regulatory power under the CWA. If you’re someone who cares about water quality and wetlands, “you’re sick to your stomach,” Dave Owen, an Environmental Law Professor at the University of California Hastings College of the Law, told Bloomberg Law. “This is a very big deal.”
Two House Republicans – Reps. Sam Graves (R-Mo.) and David Rouzer (R-N.C.) – on Jan. 24 called on EPA to halt any new WOTUS rulemaking until the Supreme Court rules. “Given this significant development, the Biden administration should immediately cease its efforts to issue a new WOTUS definition rule that will greatly broaden the federal government’s jurisdiction over privately owned land,” Graves and Rouzer said in a joint statement.
McAliley told Bloomberg Law that the Supreme Court’s ruling in the Sackett case may force EPA to revisit and re-write its rules to account for the court’s decision. If EPA can complete its rulemakings before a ruling, however, the government would likely try to persuade the justices to remand the case to the U.S. Court of Appeals for the Ninth Circuit with instructions to reconsider the lower court’s opinion, Kevin Minoli, a partner at Alston & Bird LLP., told Bloomberg Law.