Supreme Court Rules Against WOTUS Authority

TUESDAY, MAY 30, 2023

Last week, the Supreme Court ruled to limit the U.S. Environmental Protection Agency’s authority to regulate water pollution into wetlands areas that qualify as “waters of the United States” (WOTUS) under the Clean Water Act.

The ruling was the result of a dispute with Idaho landowners in the case of Sackett v. EPA. In an opinion authored by Justice Samuel Alito, the court reportedly found that the agency's interpretation of the wetlands covered by the Clean Water Act is “inconsistent” with the law's text and structure, and the law extends only to “wetlands with a continuous surface connection to bodies of water that are 'waters of the United States' in their own right.”

WOTUS Background

Part of 1972 amendments made to the Clean Water Act, federal jurisdiction was established over “navigable waters,” defined as the “waters of the United States.” The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act.

“Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” While this is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act, the term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s.

The Clean Water Act does not define WOTUS, but provides authority for the EPA and the Department of the Army to define WOTUS by regulation. In the mid-1980s, both agencies declared a definition of WOTUS.

Additionally, the EPA reported, three Supreme Court decisions have addressed the definitions of WOTUS, including United States v. Riverside Bayview Homes, Inc. in 1985; Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001; and Rapanos v. United States in 2006.

Regulations defining these WOTUS were amended in 2015 in the Clean Water Rule: Definition of “Waters of the United States,” but those were repealed by the 2019 rule that reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

Then, once again in 2020, the 2019 rule was replaced with the Navigable Waters Protection Rule. However, an order from the U.S. District Court for the District of Arizona in 2021 halted the implementation of the NWPR nationwide and interpreted WOTUS as its pre-2015 regulatory regime.

In June 2021, the EPA and the Department of the Army announced their intent to revise the definition of WOTUS. Later that year, in November, they announced the signing of a proposed rule revising this definition.

Rule Update, Lawsuits

At the end of December, the EPA and the Army announced the final rule establishing a durable definition of WOTUS to reduce uncertainty from changing regulatory definitions, protect people’s health and support economic opportunity.

The final rule reportedly restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas and interstate waters, as well as upstream water resources that significantly affect those waters.

The action is anticipated to strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.

According to the release from the EPA, the rule reportedly establishes a durable definition of “waters of the United States” that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.

It also returns to a “reasonable and familiar” framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.

Additionally, it will cover those waters that Congress fundamentally sought to protect in the Clean Water Act, including traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.

The full final rule, published in the Federal Register on Jan. 18, can be found here.

However, in January, the Associated General Contractors of America announced that it was joining a range of employer groups to file a lawsuit to block the rule, noting that the new measure allegedly violates the Clean Water Act, the Administrative Procedures Act and the U.S. Constitution’s Due Process and Commerce Clauses.

Additionally, the complaint reportedly argues that the Biden administration violated the Administrative Procedures Act, noting that the EPA’s rationale for its new rule is “arbitrary, capricious and an abuse of discretion.”

The groups alleged that the agencies used a “flawed" cost-benefit analysis and failed to solicit or consider alternative flexibility proposals as they are required to by law. The complaint also adds that the WOTUS rule violates the constitution’s Due Process and Commerce Clauses.

Texas also filed a lawsuit in January that argued the updated rule “seeks to subject land with isolated wetlands, ephemeral streams and off-channel reservoirs to an expensive and burdensome federal permitting process,” as well as disrupt the state’s “development and management of its own energy, agriculture, and transportation infrastructure.”

Additionally, according to reports, at least 26 states and the coalition of agricultural and industry groups had joined at least five lawsuits seeking to vacate the rule at the time. The EPA, however, said that the lawsuits that have been filed are aimed at halting the updated rule that isn’t that much different from the “status quo.”

At the end of March, the Congressional Review Act resolution of disapproval, citing that the president was “overreaching” with the rule, was passed by the Senate and the House of Representatives with bipartisan support by a vote of 53-43 and 227-198, respectively.

However, in April, President Joe Biden vetoed the bill to block the clean water rule, noting that the measure would leave an unclear definition of WOTUS.

Latest Ruling

Back in 2005, the Sacketts paid $23,000 for a 0.63-acre lot near Priest Lake, Idaho, and began building a home on the lot. However, after they obtained local building permits and started placing sand and gravel fill on the lot, the EPA ordered the work to stop and directed the couple to restore the property to its natural state, asserting the land contained wetlands subject to protection under the Clean Water Act.

The couple then sued the EPA in 2008, arguing the agency's jurisdiction under the law did not extend to their property. Decided on Thursday (May 25), all nine justices agreed that the wetlands on the Sacketts’ property are not covered by the act. Additionally, the ruling now reverses a decision by the U.S. Court of Appeals for the 9th Circuit, which sided with the EPA.

Despite Biden’s veto regarding the WOTUS rule, the latest outcome is expected to anticipate the ongoing court battles over new water regulations.

“The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards. It puts our Nation’s wetlands – and the rivers, streams, lakes, and ponds connected to them – at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on,” Biden said in a statement.

EPA Administrator Michael S. Regan also issued the following statement regarding the Supreme Court’s decision:

“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.”


Tagged categories: Clean Water Act; Environmental Control; Environmental Controls; Environmental Protection; Environmental Protection Agency (EPA); EPA; EPA; Government; Health & Safety; Laws and litigation; NA; North America; Program/Project Management; Regulations; Water/Wastewater

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