Bloomberg Law
Sept. 30, 2022, 9:30 AM

Wetlands Protections at Stake in Supreme Court Arguments Monday

Bobby Magill
Bobby Magill

The future of federal jurisdiction over waters and wetlands under the Clean Water Act hinges on a watershed US Supreme Court case scheduled for oral arguments Monday—the first case on the high court’s fall docket.

Protections for countless wetlands and ephemeral streams nationwide are being debated in Sackett v. EPA, which grapples with whether a long-standing test for federal jurisdiction over tributaries to large streams and rivers is constitutional.

The court is widely expected to narrow the definition of waters under federal jurisdiction—known as waters of the US, or WOTUS—under the Clean Water Act.

The case will dictate the ability of developers to build in wetlands that are not permanent standing or flowing bodies of water and have no direct surface connection with large rivers or lakes, said Melissa Reynolds, an associate at Holland & Hart LLP in Salt Lake City.

Possible Protection Loss

The court’s eventual ruling could result in the possible loss of protection of headwaters streams in the West and other waterways that run only when it rains, said Kevin Minoli, a partner at Alston & Bird LLP.

Waterways and wetlands that could lose Clean Water Act protections “are quite important to the health of the downstream traditionally navigable waters,” said Minoli, a former Environmental Protection Agency acting general counsel.

If the court narrows the WOTUS definition, “people will be able fill in those things that were previously considered to be tributaries,” and that could change how water flows in certain places, promoting flooding, Minoli said.

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 in June 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.

The stakes in the Supreme Court case “could be as consequential for clean water as recent Supreme Court rulings are for climate change and gun control,” the Natural Resources Defense Council said in an email.

Significant Nexus

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.

In a brief filed in June, the EPA asked 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 WOTUS, and agencies have for decades interpreted the law as including adjacent waters and wetlands that flow into navigable water bodies, the EPA said.

The EPA has been using what 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.

Casting Aside Precedent

The court is widely expected to cast aside the significant nexus test in favor of then-Justice Antonin Scalia’s narrower test outlined in Rapanos, which called for a direct surface-water connection between wetlands and navigable waters in order for wetlands to be considered federally-protected waters.

The justices are expected to reject Kennedy’s test in part because the term “significant nexus” doesn’t appear in the Clean Water Act and Congress did not clearly authorize such broad federal jurisdiction over waters and wetlands, said Larry Liebesman, a senior adviser at the environmental and water permitting firm Dawson & Associates.

The justices are likely to to “suggest that EPA’s rule based on significant nexus undermines federalism principles,” Liebesman said.

Minoli said he’ll be listening for any “wiggle room” for the significant nexus test in oral arguments, including clues to an extremely narrow ruling that wouldn’t toss out Rapanos entirely.

“A step further here would be to say that wetlands are not ever protected,” Minoli said. “I don’t know that there’s a risk the court would go that far.”

Reynolds said she’s watching whether the justices focus questioning on whether an artificial barrier—such as a road—severs jurisdiction of a wetland on one side from a clearly protected water on the other side.

A roadway on the Sacketts’ property is an issue in whether the waters there are protected, and it’s possible that even the restrictive Scalia test may allow those waters to keep those protections, Reynolds said.

Regulating Puddles

Developers and Republicans have long railed against EPA efforts to protect puddles and ditches on farmland and along roadways.

In a brief filed with the court in April, the US Chamber of Commerce argued that the significant nexus test is overly broad in part because it allows federal agencies to “assert authority over vast stretches of water and land, including usually dry channels and isolated wetlands.”

But 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.

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

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.

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