The U.S. Supreme Court on Jan. 25 agreed to consider a case that involves the scope of the Clean Water Act (CWA) and, more specifically, whether an appeals court set forth the proper test for determining whether wetlands are “waters of the United States” (WOTUS) under the CWA.
The Supreme Court granted a petition to review Sackett v. EPA. In that case, the U.S. Court of Appeals for the Ninth Circuit held that then-Justice Anthony Kennedy’s “significant nexus” test from Rapanos v. United States and not the Rapanos plurality’s “relatively permanent waters” standard, determines whether wetlands are subject to CWA regulation.
The court’s review is likely to have significant implications for the Environmental Protection Agency (EPA) and Army Corps of Engineers’ interpretation of the scope of CWA jurisdiction over WOTUS, including the agencies’ current WOTUS rulemaking.
The case will likely be heard during the court’s October term, with a final decision likely in late 2022 or early 2023.
In late 2021, EPA and the U.S. Department of the Army proposed to reestablish the pre-2015 definition of WOTUS. The proposed rule is updated to reflect U.S. Supreme Court precedent, the agencies said.
The American Public Power Association (APPA) in September 2021 submitted comments in response to a request for recommendations to revise and refine the regulatory definition of WOTUS. In those comments, APPA advocated that a new definition must draw clear jurisdictional lines, provide needed predictability for the regulated community, and be consistent with the Clean Water Act and Supreme Court precedent.
It is uncertain at this point whether – and if so how – the Supreme Court’s review may affect the timing or substance of the agencies’ current WOTUS rulemaking.
“The court’s decision may be highly instructive on the issues at the heart of the pending WOTUS rulemaking and could raise serious questions about the approach in the agencies’ proposed rule,” said Carolyn Slaughter, Director, Environmental Policy, at APPA.