The Never-Ending WOTUS Nightmare
The non-stop regulatory nightmare of defining what exactly qualifies as a federally regulated water way continued with news that the U.S. Supreme Court is granting review of a case challenging the Environmental Protection Agency’s (EPA) interpretation of the Clean Water Rule.
The rule, colloquially known as the Waters of the United States Rule (WOTUS), stems from sections of the Clean Water Act of 1972 granting the EPA and the Army Corps of Engineers authority to regulate changes in the environment that impact the nation’s waterways. However, the Act does not clearly define what constitutes a federally regulated waterway beyond mentioning waters are “navigable” and “interstate,” leaving the definition in the hands of each successive presidential administration.
WOTUS Under Review by SCOTUS
The U.S. Supreme Court announced last week that it will be reviewing its previous rulings to determine which standard the EPA must adopt for determining what areas can be considered wetlands under the Clean Water Act.
In its 2006 decision in the case of Rapanos v. United States, the Supreme Court yielded a plurality decision concurring opinions containing differing legal standards for determining what waters fall under federal jurisdiction. The plurality opinion, written by Justice Scalia and joined by Justice Roberts, Thomas, and Alito, defined the standard as, “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes,” as well as, “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the CWA.”
Justice Kennedy wrote a separate concurring opinion, but allowed a broader interpretation allowing for “isolated, or adjacent only to a non-navigable tributary of a navigable waterway,” and wetlands if they have a “significant nexus” to a “navigable waterway.” The case under review, Sackett v. EPA, challenges the Ninth Circuit’s decision to apply Justice Kennedy’s test as the controlling precedent for what constitutes a federally regulated waterway.
Chantell and Michael Sackett bought a half-acre plot of land in Priest Lake, Idaho, for $23,000 with the intention of building a new home. The couple placed sand and gravel fill on the lot upon which they planned to build their home.
The EPA determined that even though water on the lot does not into Priest Lake – or any other body of water – the Sackett’s property were jurisdictionally considered wetlands, requiring them to obtain a permit. The agency claimed jurisdiction because the property is adjacent to a small ditch across the street that does drain into the lake. The agency threatened fines of more than $75,000 per day if they continued to build their home.
The Sackett’s property has now sat empty for 17 years as the couple fought the EPA in federal court. The couple would likely have to pay more than $200,000 to obtain the necessary permits to build their home.
This is not the first time this case has made it to the U.S. Supreme Court. In a 2012 decision, the Court ruled in favor of the couple when the EPA claimed that their order was not subject to judicial review.
The couple is represented by the Pacific Legal Foundation.
Troubled Regulatory History
Over the last seven years, the federal executive branch drastically changed or attempted to change the definition three times, generating confusion and instability for landowners, local authorities, farmers, and developers. Under the Obama administration, the EPA expanded the definition so broadly that virtually any area that even temporarily held water, such as ditches, fell under federal regulatory jurisdiction. ALEC’s members of the Energy, Environment and Agriculture Task Force approved a model resolution strongly opposing the rule in 2014, citing that the interpretation impaired state authority and contravened congressional intent.
In 2017, the Trump Administration rescinded the Obama-era rule and enacted the Navigable Waters Protection Rule (NWPR). As ALEC noted at that time, it significantly constrained the scope of federal authority and provided commonsense guidance for stakeholders. Unfortunately, the rule was successfully challenged in federal court, and it was withdrawn by the Biden administration.
The EPA is currently considering implementing a new WOTUS rule that largely mirrors the Obama administration’s interpretation, albeit with tweaks to conform with various court rulings. Unfortunately, the latest draft contains many of the same issues that plagued the Obama-era rule, claiming greater power over private land than the Clean Water Act allows, infringing on state and local sovereignty, and claiming jurisdiction over areas that are only wet on an ephemeral basis.
The comment period for the new rulemaking is open until February 7th and can be accessed at this link.