Clean Water Current

The U.S. Supreme Court earlier this week granted review in litigation over the scope of federal Clean Water Act (CWA) jurisdiction over “waters of the United States” (WOTUS) in the case of Sackett v. EPA. 

The Court previously weighed in on the long-running Sackett litigation when it held in 2012 that the Sacketts could challenge an EPA compliance order asserting that they had violated the CWA by filling wetlands on their property without a CWA permit.  At issue now is the most recent U.S. Court of Appeals for the Ninth Circuit decision concerning that challenge. 

In determining that EPA and the Army Corps could appropriately regulate the Sacketts’ wetlands under the CWA, the Ninth Circuit applied the “significant nexus” test articulated by Justice Kennedy in the 2006 decision, Rapanos v. United States.  The Sacketts have asked the Court to reject that test, and instead adopt the Rapanos plurality opinion, authored by Justice Scalia and joined by Justices Roberts, Thomas and Alito, which held that wetlands must have a “continuous surface connection” to regulated waters to themselves be regulated under the CWA. 

Notably, both the Sacketts’ petition and many of the amicus briefs supporting Supreme Court review argued that the Court must act in the face of Congress’ failure to more clearly delineate which waters are subject to the CWA’s provisions.  Invoking a similar formulation of the “major questions” doctrine that NACWA has pushed back against in litigation over EPA’s greenhouse gas regulations, the parties contend that the scope of WOTUS cannot be determined by federal agencies because it involves “a matter of great economic and political significance” that Congress did not clearly speak to.  

EPA and the Army Corps, for their part, pointed to their recently proposed revisions to the WOTUS definition in asking the Court not to take the case, calling review “premature.”  Even in the wake of the Supreme Court’s decision to grant the Sacketts’ petition, however, EPA and the Corps say that they “remain committed to establishing a durable definition of WOTUS,” and have indicated they are unlikely to extend the Feb. 7 deadline for submitting comments on their proposed revisions.

Importantly, the new proposed definition incorporates elements of both the Kennedy and Scalia Rapanos tests.  It is therefore unclear at this point what impact the Court’s disposition of the Sackett case will have on any rule the agencies attempt to finalize in the interim. 

NACWA will be filing comments on the proposed draft revisions to the WOTUS definition.  The Association will also closely monitor the Sackett litigation and keep members apprised of any important developments.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.