Supreme Court Turns Back WOTUS Rule

The Supreme Court released its decision May 25 in one of the most anxiously awaited cases of its entire docket, Sackett v. EPA.  The court handed a victory to the plaintiffs, who have been fighting the Environmental Protection Agency in court for 15 years over heavy fines threatened for work on their homesite in Idaho. However, the majority justices in the 5-4 decision used different legal reasoning to arrive at the same result. Justice Samuel Alito wrote the majority opinion, joined by Justices Barrett, Gorsuch, Thomas and Roberts.

The case was closely watched because it set the stage for the court to reconsider key elements of the 1972 Clean Water Act, including the definition of what is a “water of the United States” for purposes of EPA regulation. That definition had been unsettled by a 2006 Supreme Court decision, Rapanos v. United States, that was split 4-4-1. In that case, the deciding opinion of Justice Anthony Kennedy that any property or wetland with a “significant nexus” to a regulated waterways was also regulated under the CWA led to multiple lawsuits with conflicting results.

In his decision, Alito wrote, “The uncertain meaning of  ‘the waters of the United States’ has been a persistent problem, sparking decades of agency action and litigation. … By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this [significant nexus] test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.” “[I]t is difficult to see,” Alito wrote, “how the states’ ‘responsibilities and rights’ in regulating water resources would remain ‘primary’ if the EPA had such broad jurisdiction.”

Alito said that to be regulated, wetlands must have a “continuous surface connection” to regulated waterways to fall under CWA protection—a narrower definition than the “significant nexus” test. Alito cited the “plurality opinion” in Rapanos, written by Justice Anthony Scalia: “The CWA’s use of ‘waters’ in §1362(7) refers only to ‘geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers and lakes’” and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.”

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The definition of “waters of the U.S.” had become a bitter and contested flashpoint in conflicts over environmental regulation. In the long-running “WOTUS wars,” many interests opposed to Kennedy’s “significant nexus” text had championed the Rapanos plurality opinion as being more workable and sensible.

Michael Regan, the administrator of the Environmental Protection Agency, said in a statement that the ruling “erodes longstanding clean water protections.”

The case began in 2007 when Michael and Chantell Sackett began backfilling their property near Priest Lake, Idaho, with dirt to prepare for building a home. The EPA told the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into “the waters of the United States.” It ordered the Sacketts to restore the site, threatening penalties of more than $40,000 per day.  In 2012, they won a Supreme Court decision that affirmed their right to challenge the EPA in court.

The Sacketts are represented by the Pacific Legal Foundation, a small public interest law firm with a history of winning big decisions in the Supreme Court.