More Than Wetlands at Stake in WOTUS Fight

Sept. 23, 2022
More than just wetlands are at stake in the latest Waters of the United States (WOTUS) fight.
Michael and Chantelle Sackett will be back in front of the U.S. Supreme Court this October in a now 15-years-running dispute with the U.S. Environmental Protection Agency (EPA) over whether they need a Clean Water Act (CWA) permit to develop wetlands on their property. But still waters run deep, and underneath what looks like a simple fight between landowners and the government lies an issue that could have major ramifications for the clean water community and beyond.

The question before the Court is whether the Ninth Circuit Court of Appeals applied the proper test in determining when wetlands are “waters of the United States” (WOTUS) subject to EPA’s CWA jurisdiction. The Ninth Circuit applied the “significant nexus” standard articulated by Justice Kennedy in the last Supreme Court decision to address the issue, Rapanos v. United States (2006). The Sacketts, however, are asking the Court to adopt a new test involving the question of whether wetlands are connected to waters that are “subject to Congress’s authority over the channels of interstate commerce.”

If adopted by the Court, the Sacketts’ WOTUS test would raise much broader questions about the authority of the federal government – not just federal agencies like EPA, but Congress as well. While seemingly a mundane use of legal jargon, a test limiting federal authority to “the channels of interstate commerce” could upend a line of Supreme Court cases dating back to the 1930s holding that the U.S. Constitution’s “Commerce Clause” gives Congress – not the states – authority over not only the physical “channels of interstate commerce,” but also activities that could have a “substantial effect” on interstate commerce. 

Commerce Clause authority underscores a host of federal laws ranging from environmental and drug regulations to civil rights protections, and a ruling limiting its application in the Sacketts’ case could have impacts reaching far beyond the CWA. But the scope of the Commerce Clause is not the only major legal question looming under the surface of the latest WOTUS fight. Another has to do with whether the CWA – at least as currently drafted – is enforceable at all.

Certain amici in the case have charged that, by failing to define “WOTUS” with enough specificity when it enacted the CWA and instead leaving the issue to federal agencies to hash out, Congress violated the “nondelegation doctrine” - the Constitutional principle that Congress cannot delegate its lawmaking powers to administrative agencies. Because the WOTUS definition underlies nearly every major provision of the CWA, were the Court to apply the nondelegation doctrine in the Sacketts’ case, the Constitutionality of the CWA itself could be called into serious question.

Importantly for the clean water community, as imperfect as the CWA may be, its federal water quality regime displaces what would otherwise be a legal landscape where activist-driven lawsuits – not permits – would drive compliance requirements. The ability of public agencies to invest in capital projects and provide affordable, sustainable clean water services would be crippled and regulatory certainty would become a relic of the past.

It was these potential consequences that led NACWA to file its own amicus brief asking the Supreme Court to reject such a novel application of the nondelegation doctrine and keep the CWA intact. The Court can answer the WOTUS question, NACWA’s brief argues, without throwing the proverbial baby out with the bathwater. 

NACWA was encouraged that the Supreme Court rejected similar nondelegation arguments in recent litigation over Clean Air Act greenhouse gas regulations. We will see in October if the CWA – and the clean water community that has made so many environmental advancements under its 50-year history – comes out similarly unscathed.