By Kevin Westerling,
The Supreme Court recently passed down its latest verdict regarding what constitutes “waters of the United States” (WOTUS) and therefore what waterbodies the U.S. EPA has — or, more to the point, does not have — the authority to regulate.
What follows are various sets of commentary about the decision and its impact.
We’ll lead with Ben Machlis, partner at international law firm Dorsey & Whitney and Chair of the firm’s Regulatory Affairs Practice Group, who provides a good overview of the court’s opinion while also offering background to the longstanding dispute.
“The court’s decision today in in Sackett v. EPA re-sets the scope of the Clean Water Act. Focusing on the geographic reach of the Act, it both narrows federal jurisdiction and limits the EPA’s authority to interpret jurisdiction. The court held that wetlands do not fall within the reach of the Clean Water Act unless they are ‘indistinguishable’ from and have a ‘continuous surface connection’ to traditionally navigable waterbodies like lakes, oceans, and rivers. The EPA went too far in interpreting the Clean Water Act’s jurisdiction as encompassing wetlands that have a ‘significant nexus’ to or ‘significantly affect the chemical, physical and biological integrity of’ traditionally navigable waters.
The significant nexus test was first articulated in Justice Kennedy’s plurality 2005 decision in Rapanos v. United States, which proved difficult to implement scientifically and administratively, and spawned numerous legal challenges.
The new jurisdictional ruling has several practical implications, including:
- The acreage of types of wetlands under federal jurisdiction are reduced;
- determining jurisdictional boundaries should be simpler and faster; and
- EPA has significantly reduced authority to modify jurisdiction through regulatory initiatives.
The last of these is particularly important. Rapanos recognized EPA’s technical expertise and directed the agency to flesh out jurisdictional boundaries through regulation.
In contrast, Sackett focuses on the text of the statute, and leaves less room for the Agency to act. Only Congress has the power to make major changes.
This does not mean there is no ambiguity or further work for EPA. Following today’s decision, the EPA will still have to interpret what it means for a wetland to be ‘indistinguishable’ from and have a ‘continuous surface connection’ to traditionally navigable waters. EPA will also need to consider issues like whether the surface connection needs to have water flowing in it continuously throughout the whole year. They will need to consider creeks and streams that only have water flowing during times of high precipitation, or only in the springtime when snow melts as well as how drought and changing precipitation patterns with climate change might impact this.
The decision will likely curtail the number of wetlands and other waterbodies regulated under the federal Clean Water Act — particularly in drier Western and Mountain-Western states where intermittent and ephemeral waterways are more prevalent than wetter states in the East and Northwest. EPA’s efforts will likely result in further disputes and litigation.
Overall, however, the outcome will likely result in easier pathways for development in the west for industries such as mining and renewable energy, depending in part on States’ reactions to the reduced federal role. While federal law allows states to promulgate their own more stringent rules to protect such waters, some Western states have statutes prohibiting their agencies from enforcing environmental protections that are more stringent than the federal floor. Other States may more aggressively develop state wetland law to compensate for the curtailment of federal jurisdiction.
As with all wetland regulation in the past quarter century, there will undoubtedly be unexpected ripple effects.”
Kirk McGill, an attorney specializing in federal and state appeals, litigation, and constitutional law at national law firm Hall Estill, added the following explanation and context to the ruling:
“This was a unanimous decision against the EPA. Although the justices had differing reasons for agreeing that the EPA exceeded its authority, including some relatively unusual lineups of the so-called liberal and conservative justices in the concurring opinions, every justice found that the EPA exceeded its authority when designating as protected wetlands property it that was not geographically analogous to waters of the United States.
This was a major loss for the EPA and a significant restriction on its ability to expand its authority without legislation by Congress — continuing a trend of the court cracking down on unelected bureaucrats increasing their own authority without authorization from Congress.
The disagreement between the justices principally came over whether essentially all wetlands are excluded that are not physically touching the waters of the United States (e.g., navigable rivers), or whether wetlands that are geographically near (but not actually touching) the waters of the United States are subject to EPA jurisdiction.
A majority of the court found that the wetlands have to be actually touching the waters of the United States to be subject to EPA regulation, but a strong minority including both ‘liberal’ and ‘conservative’ justices would have left the door open to allowing the EPA to regulate such wetlands. No one disagreed that these particular wetlands would not qualify for EPA regulation under either definition.
In short, any wetland not physically touching a continuous body of water qualifying as waters of the United States (e.g., navigable rivers) are not subject to regulation by the EPA under the Clean Water Act following this decision. The court made clear that the authority to regulate such wetlands must come from Congress and not the unelected bureaucrats at the EPA.”
As defendants in the case, the EPA naturally objected to the decision, with EPA Administrator Michael S. Regan stating:
“As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility.
I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections. The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps.
In 1972, an overwhelming bipartisan majority in Congress passed the Clean Water Act, giving EPA and Army Corp implementation responsibilities. In doing so, our leaders recognized that protecting our nation’s waters is vital to ensuring a thriving economy and agricultural sector, to sustaining diverse ecosystems, and to protecting the water our children drink.
Over the past 50 years, we have made transformational progress — rivers that were once on fire have been restored and now sustain vibrant communities in every corner of the country. A common sense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters — now and for future generations.”
Regan’s comments were echoed by President Biden’s statement, and also by environmental groups. Manish Bapna, president and CEO of the Natural Resources Defense Council, had this strong reaction:
“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price.
What’s important now is to repair the damage. The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation, and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters.
We’ll stand with frontline communities, scientists, health professionals, and others to press for the responsible clean water protections we need.”
On the opposite side — literally on the side of Chantell and Mike Sackett — is Damien Schiff, a senior attorney at Pacific Legal Foundation who argued the case on behalf of the plaintiffs. The Sacketts became embroiled in the legal wrangling of WOTUS when their new home build in Priest Lake, Idaho, was halted because their residential lot was ruled a wetland subject to federal authority.
“The Court’s ruling returns the scope of the Clean Water Act to its original and proper limits. Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers.”
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