What's in a name? SCOTUS and the Waters of the United States
- reshminawilliam
- Jun 1, 2023
- 7 min read
Last week, the U.S. Supreme Court issued a ruling on the jurisdictional reach of the Clean Water Act - a subject that has dogged U.S. environmental law for decades. In this post, I depart from my usual musings on creative writing and science to tackle the implications (and historical precedent) of one of the most significant water cases in nearly half a century.
Let me first preface what I am about to say with a disclaimer: I am not an environmental lawyer. But I am a water engineer with a healthy respect for – and curiosity about – the intricacies of the Clean Water Act and its application. You can read my thoughts on how the Clean Water Act applies in the context of interflow and green infrastructure.
With that out of the way, let’s dive in.
What is the Clean Water Act?
The Clean Water Act (or CWA) is the federal statute that regulates surface water quality in the United States. Under the CWA, it is unlawful to discharge a pollutant from a point source into a water of the United States without a permit.
That single sentence forms the foundation of water environmental law in the U.S. But it also hides a lot of legal and scientific nuance, which have been the subject of on-going court cases for over five decades.
What counts as a pollutant? What is a point source? And, crucially, what counts as a water of the United States?
I’ll focus in on that last question in this post to unravel the history of the definition of “Waters of the United States” (also known as WOTUS). And in doing so, I’ll take a closer look at the most recent Supreme Court decision… and what it means for the future of U.S. environmental law.
Why WOTUS?
Before we dive into why WOTUS has evolved into such a contentious issue, it’s worth taking a step back to talk about the CWA itself, and what the intent of the law was when it was written.
The CWA – like much environmental regulation written in the 70’s – was drafted in response to an environmental catastrophe. In the case of the CWA, that catastrophe was the 1969 Cuyahoga River fire. Although the river had caught first at least 13 previous times, the 1969 fire caught the attention of Time Magazine, which described the Cuyahoga as a river that “oozes rather than flows”. The unsavory media attention grabbed the general public, driving a cascade of water protection regulation leading to the creation of the federal Environmental Protection Agency (EPA)… and the 1972 amendments to the Federal Water Pollution Control Act (today known as the Clean Water Act).
The purpose of the CWA is to maintain and govern the “chemical physical, and biological integrity of the Nation’s waters” (CWA Section 101). In other words, its job is to safeguard the health of U.S. waters for the future. But the law also must balance other considerations. For example, agricultural runoff is specifically exempt from many aspects of the Act, as is the management of groundwater. In the United States, certain aspects of water quality protection are left to the discretion of state and local government, rather than being the purview of a federal agency like the EPA.
Unfortunately, that balancing of powers also leaves uncertainties about where the CWA should apply, and where it doesn’t. For example, it’s evident that the CWA should (and does) apply to major rivers like the Mississippi, or to the waters along the coast. But what about agricultural drainage ditches? Or streams which only flow for part of the year? Or coastal wetlands?
All of these “edge” cases certainly impact the overall ‘integrity’ of the larger hydrologic systems to which they are connected. A recent paper highlighted and categorized the wide range of hydrologic connections between rivers and wetlands across the United States. The study showed that – among other things - wetland connectivity can strongly influence acidification and dissolved oxygen content in affiliated waterways.
As we shall see, the history of Supreme Court rulings on the extent of WOTUS showcases this concern for balancing the scientific, political, environmental, and economic implications of the CWA. And the Court’s most recent ruling could significantly limit the ability of federal agencies to protect wetlands that act as buffers to the health of larger river systems.
A judicial history of WOTUS
SCOTUS has adjudicated a series of cases, beginning in 1984 with U.S. v. Riverside Bayview, that shaped the jurisdictional reach of the CWA. Up until last week, perhaps the most impactful – and most contentious - of these cases was the 2006 case Rapanos v. U.S.
At its heart, the Rapanos case addressed a very simple question: should an isolated wetland – one that was 20 miles from the nearest navigable waterway, but still connected hydrologically to it through a series of smaller drainage ditches – be considered a WOTUS?
Rapanos became a problem case because it failed to produce a majority opinion. Four justices in the plurality opinion (authored by Justice Scalia) agreed that only wetlands with a surface connection to navigable waters should be considered a WOTUS. Four justices dissented, stating that deference should be provided to the expertise of the Army Corps of Engineers in the case. And Justice Kennedy, in a concurring opinion, stated that a wetland can only be considered a WOTUS if it shows a “significant nexus” connection to a navigable water.
For the next seventeen years, the lower courts were divided as to how to apply the Rapanos ruling. The 1st, 3rd, and 8th Circuits allowed either the plurality opinion or the “significant nexus” test to be used. The 5th and 6th Circuits declined to explicitly choose a controlling standard. And the 7th, 9th, and 11th Circuits stated that the “significant nexus” test was the controlling standard. Further confusing matters was the lack of clarity around what constituted a “significant nexus”.
In 2020, SCOTUS ruled on another case that muddied the waters further. County of Maui v. Hawaii Wildlife Fund asked whether a permit is required under the CWA if the discharge in question reaches a WOTUS through groundwater transport. Historically, the CWA has only regulated surface water quality, leaving groundwater regulation solely the purview of the States. However, the ruling in County of Maui stated that discharges to groundwater require a CWA permit if they are the “functional equivalent of a direct discharge” to a WOTUS. Factors that might impact whether a discharge is a “functional equivalent” include the distance that the pollutant would travel to reach a WOTUS, the time taken for that travel, and any biochemical changes that might affect the pollutant while in transit.
Both the Rapanos “significant nexus” test and the County of Maui “functional equivalence” test are not brightlines; they require scientific understanding and legal nuance to apply appropriately. That makes it difficult for most lay landowners to determine whether a development on their property does or does not require a permit under the CWA.
Sackett v. EPA
Which brings us to Sackett v. EPA.
The ruling in this case is odd, but for the opposite reason from Rapanos. The Sacketts, who have been fighting this particular case in the courts for over fifteen years, received a unanimous ruling in their favor from the Supreme Court regarding whether they were allowed build a house on an empty lot near a lake in Idaho without a CWA permit. The Justices simply disagreed on the reason why.
In the majority ruling, Justice Alito explicitly rejected the “significant nexus” approach to determining whether a wetland is a WOTUS. The opinion pointed out that the significant nexus test is confusing and “particularly implausible” for landowners attempting to determine whether the law should apply to their property. Instead, Alito stated that the CWA should only apply to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” In other words, the opinion makes it explicit that the Rapanos plurality “surface water connection” test should be the one that applies moving forward.
A concurring opinion, penned by Justice Thomas, highlighted the limited authority granted by Congress to the EPA and the Army Corps of Engineers in the regulation and enforcement of the Clean Water Act.
Four of the Justices penned another concurring opinion, agreeing with the holding, but objecting to its reasoning. In it, Justice Kavanaugh wrote that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, 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.” For example, under the court’s new test, the wetlands on the other side of levees on the Mississippi River would not be covered by the CWA, even though they “are often an important part of the flood-control project” for the river.
The final concurring opinion, written by Justice Kagan, criticized the majority opinion for “appointing [the Court] a national decision-maker on environmental policy”. Justice Kagan highlighted that Congress intended to grant the CWA a broad mandate, and that the majority opinion explicitly goes against that mandate by curtailing the abilities of the EPA to effectively do its job.
Where do we go from here?
In an ideal system of governance, Congress would write legislation, the Executive branch would implement that legislation, and the Judicial branch would help to interpret legislation. As we’ve seen in this overview of the history of WOTUS, the lines between the three branches of government are not always so clear cut.
In the wake of the Rapanos ruling in the early 2000’s, four consecutive administrations have attempted to define what should be defined as a WOTUS. Due to the vagueness of the significant nexus test, the cutoff line has waivered back and forth between more and less conservative interpretations for nearly twenty years.
The Sackett ruling puts a hard stop to that debate, narrowing the definition of water counts as a WOTUS to only those wetlands with a continuous surface connection to a nearby navigable water. In doing so, it strips federal protections from nearly half the wetlands in the United States.
From a legal standpoint, Sackett also stands to potentially contradict another landmark SCOTUS ruling: County of Maui v. Hawaii Wildlife Fund. If groundwater can be considered connected to a WOTUS using the “functional equivalence” test, why can’t a hydrologically connected wetland, even one without a surface water connection?
It will be interesting to see how the lower courts resolve this discrepancy in future cases. For now, it remains to be seen if – and how – Congress and the Executive branch respond to this latest chapter in the on-going saga of the Clean Water Act.
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