WOTUS To Get The SCOTUS Treatment, Again

• Published date: 26 January 2022
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Water
• Law Firm: Jenner & Block
• Author: Ms Allison A. Torrence

On January 24, 2022, the U.S. Supreme Court agreed to hear a case on the scope and authority of the Clean Water Act ("CWA"). The Court granted certiorari in the case of Sackett v. U.S. Environmental Protection Agency, 19-35469, on appeal from the U. S. Court of Appeals for the Ninth Circuit.

The question presented to the Court is, seemingly, straightforward: "Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. ' 1362(7)." But, this question has wide-reaching implications. The definition of "waters of the United States" ("WOTUS") sets the jurisdictional limits of the CWA. Under the CWA, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Army Corps") have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. ' 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. ' 1344). "Navigable waters" are defined in the CWA as "the waters of the United States, including the territorial seas." 33 U.S.C. '1362(7). "Waters of the United States" is not defined further under the Act, so the agencies have been left to try to craft a definition.

The Army Corps and EPA first proposed a WOTUS definition in 1977 and it has faced revisions and legal challenges ever since. The WOTUS definition has faced Supreme Court review in three previous cases:

• U.S. v. Riverside Bayview, 474 U.S. 121 (1985)
• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
• Rapanos v. U.S., 547 U.S. 715 (2006)

In the most recent Supreme Court treatment, the Court did not reach a majority opinion. Justice Scalia authored a plurality opinion, Justice Kennedy wrote a concurring opinion, and Justice Stevens wrote a dissenting opinion. Following the Rapanos decision, lower courts and the agencies have grappled with whether to follow the framework laid out by Justice Scalia or Justice Kennedy. The primary difference is how they dealt with bodies of waters on the fringe of jurisdiction, like wetlands. Justice Scalia would include in WOTUS: "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.[and] only those wetlands with a continuous surface connection to bodies that are "waters of the United...