Creating Solutions Together

If you follow the Waters of the United States (WOTUS) issue at all, you know that the U.S. Supreme Court made a very important ruling last month. The case was Sackett v EPA and the Court ruled against EPA by determining property used by Michael and Shantell Sackett to build a house was not a wetland WOTUS. The ruling has been widely covered in the media. A lot of the media coverage characterizes the ruling as either ‘a big win’ for agriculture and industry or ‘a big loss’ for the environment. The fact is that the ruling is both good for those interested in protecting property rights while also at the same time not bad for protecting water quality. The ruling may be considered bad by some who planned on using WOTUS to advance their ambitions to broaden ecological protections. The Court ruling makes it clear that WOTUS cannot be used to broaden ecological protection. The Clean Water Act, which is the law Congress passed in 1972, established protection for WOTUS. If ecological protection is desired, then Congress needs to pass a new law perhaps called the Ecological Protection Act.

Perhaps the most crucial comment in the media was from EPA. EPA’s media department put out a press release saying that it was disappointed by the Supreme Court’s decision and that it would “carefully review the Supreme Court decision and consider next steps”. Indeed, EPA’s next steps will be very important. Most agree that EPA’s current rule must be revised yet again based upon the recent Supreme Court ruling. EPA’s current rule is based largely on the significant nexus test and the Supreme Court specifically ruled that test out as a basis for determining a WOTUS. So, what will the next WOTUS rule from EPA say? EPA Administer Regan has stated that he wants a “durable” WOTUS rule. If that is truly the case, then, EPA should rewrite the WOTUS rule so that it is well within the scope of the Court’s decision. By doing so, it would likely reduce the number of lawsuits and diminish the likelihood that WOTUS would once again end up at the Supreme Court. However, EPA could also be emboldened by environmental groups and media to write an extreme rule that once again ends up at the Supreme Court. For example, the Court ruled that an area must be adjacent to a relatively permanent body of water and have a continuous surface connection with water to be considered a WOTUS. However, the Court did not specifically define ‘relatively permanent’, nor did it define ‘continuous surface connection’. In writing its next rule, EPA could take an extreme interpretation of the Court’s ruling. For example, suppose a farm ditch holds water most days of the year and drains a farm field directly into a stream which is clearly a WOTUS. Will EPA write a rule that says that farm field is ‘connected’ (the ditch) to a ‘relatively permanent body of water’ and therefore the farm field is a wetland WOTUS? Some are urging meetings with EPA and congressional letters posing these questions directly to EPA to understand where the agency is heading and to encourage EPA to write a new rule that is well within the bounds of the Court’s ruling.

Personally, I am not sure where or when the WOTUS debate will end. And while I join with many in applauding the Supreme Court’s decision, I cannot help but to recall the celebration around the WOTUS rule developed by the Trump EPA only to end up with the current EPA rule under the Biden administration. The battleground under the current debate is as much political and public relations as it is legal. The politics behind WOTUS is very strong on both sides. The fact is the Court ruling still allows EPA to come up with another rule that many may not like. And even if the next rule EPA writes is reasonable, the focus could turn to the states. Environmental groups most likely will pressure policymakers at the state and local levels to make policy which expands water and ecological regulations. So, with this in mind, now is not the time for us to rest and relax. MACA will continue to engage on this issue and to keep you informed.

The ‘MACA Water Update’ is designed to focus on an issue(s) and how it may impact your business as well as the entire industry. If you have any questions, please reach out to Steve at [email protected].