After reading, rereading, and rereading again, I can鈥檛 help but conclude that the Supreme Court鈥檚 decision in makes no sense. The case presented the decades-old question of which waters, and by extension, the wetlands adjacent to those waters, are considered 鈥渨aters of the United States鈥� (WOTUS) and therefore subject to federal regulation under the Clean Water Act (CWA). Section 404 of the CWA requires operators to obtain a permit from the Army Corps of Engineers (Corps) before beginning dredge and fill operations on WOTUS. But the confusion surrounding the meaning of WOTUS, most of it caused by the Supreme Court itself, puts anyone potentially subject to regulation under the CWA in a difficult spot. If they fail to get a permit when one is needed, they could be subject to fines and ordered to restore any land or water they disturbed. The Corps has also been placed in the untenable position of not being able to ascertain what lands and waters are deemed WOTUS.
The Supreme Court has now issued four decisions addressing WOTUS. With each decision they seem to show greater hostility towards the law, even as they fail to offer clear guidance to the public and the agency about what activities, lands, and waters are subject to regulation.
was the first of these, issued in 1985. It was a unanimous decision upholding the Corps鈥� authority to regulate the proposed filling of wetlands adjacent to a navigable stream. Although Riverside was arguably an easy case, the Court signaled its intention to support a broad reading of the WOTUS, consistent with Congress鈥� declaration in the conference report to the CWA that they intended 鈥渢he broadest possible constitutional interpretation鈥� of federal jurisdiction.
But in its subsequent 5-4 decision in , which came down in 2001, Justice Rehnquist, speaking for the Court, narrowly construed the CWA because it believed that a broad reading might violate the commerce clause of the constitution. Specifically, the Corps struck down the 鈥渕igratory bird rule,鈥� whereby waters used by migratory birds were deemed WOTUS. Oddly, the Court failed to even assess the scope of the CWA against the commerce clause or other constitutional authorities like the treaty clause. Had it done so, it surely would have found grounds to uphold the statute under the constitution.
The SWANCC decision forced the Corps to develop a process whereby a party could seek a 鈥渏urisdictional determination鈥� from the Corps. This added another bureaucratic layer to the policy of protecting our nation鈥檚 waters and forced the Corps to back-off from claiming jurisdiction where the administrative cost of doing so was simply too high.
Five years later, in 2006, a divided Court once again narrowly construed the CWA in . Justice Scalia鈥檚 plurality opinion for four members of the Court held that only those wetlands with a continuous surface connection to a traditional navigable water would be deemed WOTUS. In a concurring opinion, Justice Kennedy held that wetlands should be deemed WOTUS if they have a 鈥渟ignificant nexus鈥� with traditionally navigable waters. Kennedy based his opinion in part on the CWA鈥檚 main purpose of restoring and maintaining the chemical, physical, and biological integrity of the Nation鈥檚 waters. But like Scalia, and Rehnquist before him in SWANCC, he ignored Congress鈥� admonition that it intended WOTUS to have the 鈥渂roadest possible constitutional interpretation.鈥�
SWANCC resulted in confusion across the country for the interested public, regulated parties, administrative agencies, and the courts. EPA and the Army Corps of Engineers took the position that Justice Kennedy鈥檚 鈥渟ignificant nexus鈥� test would control the issue moving forward, but the application of that new rule, forced upon federal and state agencies by the Supreme Court, would prove to be a costly and uncertain process.
That tortured history set the stage for the Supreme Court鈥檚 most recent opinion in Sackett, in which the Court compounds these mistakes by ignoring the science and prior precedent by further narrowing the CWA鈥檚 reach by defining 鈥渁djacent鈥� to mean 鈥渁djoining.鈥� Even using a plain meaning of the word, adjacent realistically includes wetlands that are 鈥榥ext to鈥� or 鈥榖eside鈥� a navigable water. However, relying on Justice Scalia鈥檚 decision in Rapanos, the Court held that WOTUS covers only those relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to a traditional navigable water body. According to the Court, the surface connection must be so extensive that it is difficult to determine where the water ends, and the wetland begins. An even larger problem with the majority approach is their use of section 404(g)鈥檚 parenthetical reference to 鈥榓djacent wetlands鈥� as the justification for limiting the jurisdictional reach of the CWA. According to the Court, 鈥渂ecause section 404(g) includes adjacent wetlands within WOTUS, these wetlands must qualify as WOTUS in their own right, i.e., be indistinguishably part of a body of water that itself constitutes waters under the CWA.鈥�
Limiting the Corps jurisdiction to only those wetlands with a continuous surface connection will result in catastrophic damage to our nation's waters because many ecologically important areas will not be protected by the CWA. The ruling goes even farther than the Trump-era which removed protections from 51% of wetlands nationwide.
In a few weeks, the EPA and the Corps will release a proposed rule to clarify the meaning of WOTUS and issue guidance to States and Tribes looking to assume their own 404(g) permitting and compliance program. Given that EPA plans on issuing a new operational definition of WOTUS without public comment, we encourage all partners to read the of the 搂 404(g) rule which solicits comments on each area of the program, particularly funding, operations, and judicial review of final determinations. The Getches-Wilkinson Center plans to submit a comment to the EPA on this proposal. If you have any comments or concerns that you believe we should address in our comment, please feel free to reach out to me via email to andrew.teegarden@colorado.edu.
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