Supreme Court Rules for Plaintiff, Industry on WOTUS

The Supreme Court ruled on “Waters of the United States” or WOTUS – the Environmental Protection Agency’s ability to regulate wetlands under the Clean Water Act – with a 5-4 majority rolling back federal safeguards in a long-running dispute between the government and a couple who owns property in Idaho. 

“Today’s opinion in Sackett v. EPA is a victory for our industry and is a major step towards a more reasonable definition of WOTUS, which our members have struggled with for years and was exacerbated by the premature and confusing Biden administration rule. With the end of significant nexus, we hope that the agencies heed this decision and work for a truly durable rule,” said National Stone, Sand & Gravel Association (NSSGA) President and CEO Michael Johnson. “A clearer WOTUS definition is necessary for our industry to provide the materials needed to build and modernize our country’s infrastructure in an environmentally friendly manner.”

“Today’s Supreme Court decision removes unnecessary and un-supportable impediments to transportation improvements across the country,” said American Road & Transportation Builders Association (ARTBA) President and CEO David Bauer. “With Sackett as a guide, we urge the EPA to pursue common sense strategies that complement our nation’s infrastructure and environmental goals.”

ARTBA and NSSGA have been working together on the issue of CWA jurisdiction since 2005, along with other national association coalition allies. The groups have also been involved in federal district court litigation on the WOTUS rule since 2015. With the clarity provided by the Sackett decision in hand, the groups will continue their efforts to repeal the WOTUS rule and work towards a clear definition of the CWA’s reach.

The case involved Chantell and Michael Sackett, who purchased a vacant lot near Idaho’s Priest Lake. Three years later they broke ground, hoping to build a family home, but soon got entangled in a regulatory dispute. As they began backfilling the property with 1,700 cu. yd. of sand and gravel to create a stable grade, the EPA sent them an order halting construction.

Justice Samuel Alito, writing for the majority, concluded that the Clean Water Act extends only to those “wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights.”

Alito said that the wetland had to have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.”

Justice Brett Kavanaugh, writing for himself and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, said that he would have ruled for Idaho property owners Chantell and Michael Sackett on narrower grounds without changing the statutory definition at issue: “Waters of the United States.” Kavanaugh insisted that the lands to be regulated did not have to physically touch an adjacent waterway to constitute “waters of the United States.”

“By narrowing the (Clean Water) Act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

White House spokesperson Karine Jean-Pierre condemned the ruling, saying it takes the country backwards and will jeopardize clean drinking water. Jean-Pierre added that President Joe Biden will use every legal authority he has to ensure that Americans have safe water.
In a brief to the Court before the ruling, ARTBA and NSSGA critiqued the “significant nexus” test, noting it has “no inherent limiting principles” and empowers federal agencies to assert federal jurisdiction “well beyond the limits set by Congress.” 

ARTBA and NSSGA maintained that defining WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. This type of overregulation serves only to delay critical infrastructure improvements and increases costs without providing any environmental benefits, the groups say.

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