Bloomberg Law
Jan. 24, 2022, 7:49 PMUpdated: Jan. 24, 2022, 9:27 PM

High Court Drops ‘Earthquake’ on Federal Water Protections (1)

Bobby Magill
Bobby Magill

The U.S. Supreme Court is likely to deal federal wetland and waterway safeguards a near-fatal blow by hearing arguments to limit the scope of the EPA’s power under the Clean Water Act, attorneys say.

If you’re someone who cares about water quality and wetlands, “you’re sick to your stomach,” said Dave Owen, an environmental law professor at the University of California Hastings College of the Law. “This is a very big deal.”

The court is expected in Sackett v. EPA to narrowly define waters of the U.S., or WOTUS, possibly undermining two Environmental Protection Agency rulemakings that are poised to expand those federal protections, attorneys say.

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

Questions about the federal government’s ability to broadly define WOTUS remains unresolved since the high court failed in 2006 to definitively answer the question in Rapanos v. U.S. Each successive White House since then has written its own definition conflicting with the previous one.

“The decision to take this case is an earthquake,” said Neal McAliley, an attorney with the Miami office of Carlton Fields P.A. “The Supreme Court is likely to resolve the scope of the waters of the U.S.”

Mooting Rulemakings

The court’s conservative majority is likely to moot the EPA’s two WOTUS rulemakings now underway, Owen said.

The first of the rulemakings roughly reinstates a 1986 rule widely defining WOTUS after the Trump administration lifted those and the Obama administration 2015 wetlands protections with the Navigable Waters Protection Rule, which an Arizona federal court vacated last year.

The second of the rulemakings is expected to expand upon the 1986 rule, putting the Biden administration’s imprint on the definition of federal waters. A public comment period on the proposal concludes Feb. 7.

Until the court rules and establishes what can be expected to be a narrow interpretation of federal jurisdiction over streams and wetlands, the EPA can be expected to continue the rulemakings, said Larry Liebesman, a senior advisor at the environmental and water permitting firm Dawson & Associates.

But EPA officials involved in the rulemaking will have to “somehow acknowledge” that the high court accepted the case, Liebesman said. “They can’t ignore it.”

Two House Republicans, including Reps. Sam Graves (R-Mo.) and David Rouzer (R-N.C.) on Monday called on the EPA to halt the rulemakings 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.

EPA Committed to Rule

While the agency doesn’t comment on pending litigation, it’s “committed to establishing a durable definition” of WOTUS, spokesman Timothy Carroll said.

That definition will be one that includes “diverse perspectives and protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water,"he said.

The case doesn’t directly address the Biden administration’s rulemaking efforts, but its outcome may force the EPA to revisit and re-write its rules to account for the court’s decision, McAliley said.

It’s unclear when the court will rule, but the timing may determine the trajectory of the EPA’s rulemakings, said Kevin Minoli, a partner at Alston & Bird LLP.

If the EPA can complete its rulemakings before a ruling, 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, Minoli said.

The case is: Sackett v. EPA, U.S., No. 21-454, cert granted 1/24/22

(Adds statement from Rep. Sam Graves and Rep. David Rouzer beginning in twelfth paragraph. )

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