How the WOTUS Supreme Court Ruling Shapes Our Environment
By Kendall Chappell and Gabriela Carson, August 13, 2023
The nationwide debate about the Waters of the United States (WOTUS) continues. To see our earlier blog post and learn more about the history and importance of WOTUS, click here.
In May 2023 the Supreme Court unanimously ruled that the Sacketts’ development activities did not violate the Clean Water Act. Sackett v. EPA concerned a wetland on private property which the Sacketts filled with dirt to build a house. The EPA claimed this wetland fell under WOTUS, but the 2023 ruling will have sweeping ramifications for bodies of water across the US as the significant nexus test comes into question.
According to an EPA fact sheet, “a significant nexus exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity” of a body of water that falls under WOTUS. With this definition, that nexus does not have to be visible (i.e. on the surface). The significant nexus test was first created in the 2006 case Rapanos v. United States. Despite not being the majority opinion, this case was split in the Supreme Court with four justices for the majority’s test, four for the significant nexus test, and one for a different test. Because of this split, both the significant nexus test and the majority’s test could be applied in future Clean Water Act cases. Until Sackett, the EPA had taken the significant nexus test as law. The Sackett majority, however, adopted much of the Rapanos majority’s ruling, thus overruling the significant nexus test.
The Clean Water Act protects “adjacent wetlands” through their inclusion in the definition of “navigable waters.” In Sackett, the majority embraced a stricter standard through interpreting adjacent as requiring a “continuous surface connection” to traditionally navigable waters, which must make the wetland “indistinguishable” from the connected water body. This ruling is even narrower than the Trump administration’s proposed 2020 Navigable Waters Protection Rule, and will likely remove Clean Water Act jurisdiction from a majority of the country’s wetlands.
Despite this restrictive ruling, the Court left many questions unanswered. While the majority says covered wetlands must be “relatively permanent,” they do not explain where the line is for seasonal bodies of water. Furthermore, because the case focuses on wetlands, it is not clear how far the ruling goes with respect to other non-traditionally navigable bodies of water.
In his concurrence, Justice Kavenaugh emphasized the flaws and ambiguities in the majority’s opinion. Particularly, in discussing “adjacent wetlands” (covered within the Act’s definition of “navigable waters”), the majority conflated the term “adjacent” with adjoining. Justice Kavenaugh further discussed that, “in the 50 years since the act was passed, the agency has consistently said wetlands and other waters are covered, even when they do not flow into other waters.” By requiring a continuous surface connection, the Court thus does away with decades of precedent protecting nearby but discontinuous wetlands.
By removing protections from discontinuous wetlands, the Supreme Court is removing protections even where pollutants will clearly get from a wetland into a larger body of water. Where in the past a road or dam was created, resulting in two separate bodies of water, this land will likely not be protected anymore. This will significantly affect the water quality of nearby navigable waters (i.e., many larger lakes, rivers, and oceans) as the surrounding wetlands may be polluted and then discharge, during periods of flooding, into the water. For example, Justice Kavenaugh’s opinion mentions the Mississippi River--its levee system, meant to prevent flooding, would likely preclude the nearby wetlands from being covered under the Clean Water Act, despite their importance in flood control. Earthjustice provides a detailed graphic on which states are most at risk after the ruling.
The SCOTUS ruling reinforces the importance of clear, indisputable language in environmental policy. From an environmental protection perspective, it makes sense to confer equal protections to an already-established federal body of water and another wetland that connects to it (whether the connection is continuous or not). However, since the significant nexus test is vague in nature, there is room for business interests and the US Chamber of Commerce to argue for narrower EPA authority. Once policymakers introduce more technical language, politicians and industry associations can use it to their advantage to introduce doubt about the necessity of certain policies. Across the US, “lobbies for farmers, miners, homebuilders, golf course managers and a slew of other powerful interests are trying to sway the White House” towards creating a more advantageous definition of WOTUS for their businesses.
Some of the Congress members speaking out in favor of curtailing the EPA’s jurisdiction have ties to the US Chamber of Congress, including Chamber-endorsed Senator Chuck Grassley (R-Iowa). Senator Grassley helped introduce the Navigable Waters Protection Act of 2021 and has expressed his support for the recent SCOTUS decision.
Rhetoric remains a hugely important aspect of the greater climate movement as well. The evolution of climate messaging by organizations like the Chamber of Commerce reflects its history of signaling itself as climate friendly while using its influence to challenge environmental protection policies.
The Waters Advocacy Coalition (WAC), which has been aligned with the Chamber over the WOTUS issue for years, has sent recommendations to the EPA and Army Corps of Engineers for how they should define WOTUS. One notable recommendation concerns the use of the term “adjacent” in the WOTUS definition. WAC urges the Biden administration to “clarify that wetlands are jurisdictional only when they are indistinguishably part of another WOTUS” in order to be in agreement with the Sackett ruling. This would eliminate the consideration of wetlands that only sometimes connect to WOTUS, like during flooding, even though they could have an effect on water quality.
The EPA and Army Corps of Engineers will have to revise the definition of WOTUS, which will likely be available on September 1st.
Change the Chamber’s previous blog post about WOTUS and its implications can be found here.
Change The Chamber is a bipartisan coalition of over 100 student groups, including undergraduates, graduate students and recent graduates.