The Supreme Court of the U.S. (SCOTUS) this week ruled against the Environmental Protection Agency (EPA) on the Waters of the U.S. rule, holding that “waters of the United States” (WOTUS) only extends to wetlands only if it blends or flows into a neighboring water that is a channel for interstate commerce.
Background
In 2007, Michael and Chentell Sackett began backfilling an empty lot on their property located 300 feet from a large lake. The Sacketts then received a notice from the EPA to stop work because their lot was a wetland protected under the Clean Water Act (CWA), a landmark law administered by the EPA, stating it was “navigable waters.” That term refers to “waters of the United States.” This began the Sackett’s 15-year-long legal battle.
The 9th Circuit Court originally ruled with the EPA, citing the precedent established by Justice Anthony Kennedy in Rapanos v. United States where the “significant nexus” test was introduced. This test stated that waters such as wetlands would be considered under WOTUS if they “significantly affected” the quality of connected waters.
SCOTUS Decision
This week’s SCOTUS decision, written by Justice Samuel Alito, reversed the 9th Circuit Court’s decision. Now the CWA only applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce, significantly narrowing EPA’s jurisdiction over standing waters.
Justice Alito pointed out that the CWA emphasized that the term “waters” in the CWA generally referred to permanent bodies of waters like rivers and lakes. Under this reasoning, connected or adjacent wetlands would qualify under the CWA, but wetlands that are entirely separate from traditional bodies of water would not qualify.
Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson agreed in part that the CWA does not apply to the wetlands on the Sackett’s lot but disagreed with the majority’s reasoning for ‘why.’
In light of this ruling, the proposed WOTUS rule from the EPA and Army Corps of Engineers will need significant revisions in accordance with the new SCOTUS precedent.
EPA in the Trump administration attempted to finalize a significantly more narrow WOTUS rule, but the Biden administration threw it out upon taking control of the Agency in January 2021.
The full SCOTUS decision can be found here.
