Federal Water Protections Are in Question With Supreme Court Case

The high court is expected to narrowly define waters of the U.S.

January 28, 2022

Lake Michigan

ALEXANDRIA, Va.—The U.S. Supreme Court is set to hear arguments that could potentially limit the amount of power the Environmental Protection Agency (EPA) has under the Clean Water Act, reports Bloomberg.

In the court case Sackett v. EPA, Idaho residents Chantell and Michael Sackett have been trying for 15 years to build a house on land the federal government says includes federal waters, and the high court is expected to narrowly define waters of the U.S. By doing this, the Supreme Court would undermine two Environmental Protection Agency rulemakings that are poised to expand those federal protections.

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

In the past, NACS opposed efforts to unnecessarily expand the interpretation and definition of the “Waters of the U.S” (WOTUS) and what constituted protected wetlands under the Navigable Water Protection Rule. These efforts to broaden what could and could not be allowed under the Clean Water Act could subject certain activities to heightened permitting and environmental requirements. For example, changing the definition of WOTUS could impact Spill Prevention, Control and Countermeasure (SPCC) requirements, spill reporting obligations, construction permitting requirements and effluent discharge monitoring and reporting requirements, among others. NACS supports a pause on further regulatory action until the Supreme Court issues a decision on this case.

According to Dave Owen, an environmental law professor at the University of California Hastings College of the Law, the court could moot the two rulemakings on U.S. waters the EPA has underway now. The first rulemaking roughly reinstates a 1986 rule widely defining the waters of the U.S. after the Trump Administration lifted those and follows the Obama Administration’s 2015 wetlands protections with the Navigable Waters Protection Rule, which an Arizona federal court vacated last year, according to Bloomberg. The second rulemaking should expand the 1986 rule.

Two House representatives asked the EPA to hold on its rules until the Supreme Court issues a decision on the case.

“Given this significant development, the Biden Administration should immediately cease its efforts to issue a new [waters of the U.S.] definition rule that will greatly broaden the federal government’s jurisdiction over privately owned land,” said Reps. Sam Graves (R-Mo.) and David Rouzer (R-N.C.) in a joint statement.

While the Supreme Court case does not directly impact the EPA’s rulemaking efforts, its outcome may force the EPA to revisit and re-write its rules to account for the court’s decision, Miami attorney McAliley said.

According to Kevin Minoli, a partner at Alston & Bird LLP, if the EPA can finish its rulemaking before the high court comes to a decision, the government would likely try to persuade the justices to remand the case to the U.S. Court of Appeals for the 9th Circuit, with instructions to reconsider the lower court’s opinion.