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EPA Asks Court to Maintain Expansive Federal Waters Protections

June 10, 2022, 11:19 PM

The US Supreme Court should uphold Clean Water Act protections for wetlands that aren’t directly connected to large bodies of water, the EPA argued in a brief filed Friday in a case that will determine the extent of the federal government’s power over wetlands nationwide.

Clean Water Act protection should be so expansive that the law should protect even artificial tributaries such as ditches, the Environmental Protection Agency argued in its brief.

In Sackett v. EPA , the EPA is asking the court to affirm a US Court of Appeals for the Ninth Circuit ruling upholding then-Justice Anthony Kennedy’s concurrence in a 2006 decision in Rapanos v. U.S . That ruling established the agency’s longstanding test for determining what streams and wetlands receive federal protection from pollution.

The Clean Water Act protects navigable waters as waters of the US, or WOTUS, and agencies have for decades interpreted the law as including adjacent waters and wetlands that flow into navigable water bodies, the EPA said.

Leaned Into Protections

Developers and Republicans have long railed against EPA efforts to protect puddles and ditches on farmland and along roadways, but the EPA on Friday leaned into those protections.

The Clean Water Act “expressly contemplates that drainage ditches may be covered waters; the distinction between natural and artificial tributaries has no bearing on whether a tributary can carry water and pollutants into traditional navigable waters,” the EPA wrote in its brief.

But the EPA said Supreme Court precedent requires those ditches to contain “relatively permanent” water flows for them to receive protection.

The case involves Chantell and Michael Sackett of Idaho, who have been attempting for more than 15 years to build a house on land the federal government says includes federal waters.

“The wetlands at issue are 30 feet from a tributary to Priest Lake and just 300 feet from the lake itself,” the EPA said of the Sacketts. “But petitioners contend that those wetlands are categorically excluded from the CWA’s coverage because they are separated from the adjacent tributary by a barrier—here, a road.”

The justices must agree that the Sacketts’ wetlands are federally protected, or it would cast aside the court’s own precedent and “severely undermine a central component of the CWA’s comprehensive scheme for protecting the Nation’s waters,” the EPA wrote.

‘Monkey Wrench’ Coming

But the court is expected in Sackett v. EPA to possibly throw “a monkey wrench” into how the Clean Water Act is enforced and what waters it protects by more narrowly defining WOTUS and possibly casting it aside, Ashley Peck, a partner at Holland & Hart LLP in Seattle, said Friday.

At least three Biden administration rulemakings hinge on the outcome of the case. The EPA is undergoing two separate rulemakings updating the definition of WOTUS, and the agency last week unveiled a proposed Clean Water Act Section 401 rule that would restore states’ veto power over pipelines and other projects expected to pollute federally-protected waters within their borders.

“If the court decides the case in the direction it appears to be leaning, it will undermine the Biden administration’s current proposal for WOTUS,” Peck said. “It will affect not only WOTUS and permitting, but stems in to the 401 rule and virtually every other program under the Clean Water Act.”

Each administration since 2006 has attempted to expand or slash federal wetlands protections. The justices now have the chance to stop the swinging pendulum of WOTUS rules by narrowing the definition, developers’ briefs filed in the case argue.

A narrow definition could potentially limit the ability of the federal government to prevent stream water pollution and protect imperiled wetlands and the species that thrive there while allowing construction to damage those waters without a federal permit.

Tributaries Contribute Pollution

The EPA has been using what Justice Kennedy called the “significant nexus” test—the court’s compromise in its Rapanos ruling, in which the justices issued five different opinions.

The idea meant that any pollution or development causing pollution in a tributary of a navigable river or lake would affect the biology and chemistry of the larger water body.

There was no scientific basis for that test at the time. But since then, the EPA has provided scientific underpinnings for it, adopting the idea that even wetlands that don’t have a direct surface-water connection to larger bodies of water can be connected underground, and pollution can flow from one to the other.

The Trump administration in 2020 wrote the Navigable Waters Protection Rule, which lifted WOTUS protections for many ephemeral streams nationwide. But courts tossed out the rule and the Biden administration is in the process of replacing it with a new rule restoring the significant nexus test, followed by another rulemaking set to expand those protections.

In briefs filed with the court in April, the Sacketts’ lawyers argued that the significant nexus test is “illogical” and “bizarre” because it turns anything that affects water into a water itself, “thereby inevitably erasing the distinction between water and land.”

But the EPA argued Friday that nearby wetlands that “significantly affect the chemical, physical, and biological integrity” of traditional navigable waters should be protected under the Clean Water Act.

“The Act is designed to provide comprehensive protections to traditional navigable waters, which necessitates regulating the network of wetlands and tributaries that significantly affect those waters—even in the absence of a continuous surface connection,” the EPA’s brief argues.

The case is Sackett v. EPA, U.S., 21-454, 6/10/22

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Zachary Sherwood at zsherwood@bloombergindustry.com