|How the term "waters of the United States" is defined under the Clean Water Act will have a critical effect on U.S. wetlands, about half of which have been destroyed in the lower 48 U.S. states since the 1600s. Above, West Eugene Wetlands. Photo: Bureau of Land Management Oregon/Greg Shine, Flickr Creative Commons (CC BY 2.0).|
Issue Backgrounder: Supreme Court Winds Up for Another Swing at Clean Water Act
By Joseph A. Davis
It won’t be long before the U.S. Supreme Court takes another swing at the piñata we call WOTUS — and special interests will be scrambling for the candy. Chaos (and news) is to be expected.
WOTUS stands for “waters of the United States,” a very old term that goes so far back it offers a history of pollution law. The key issue behind its definition is just how broad the U.S. Environmental Protection Agency’s reach is for controlling water pollution.
The Trump-weighted Court will try to settle the case of Sackett v. EPA, which is just the latest round in a decades-long argument over the scope of the Clean Water Act, or CWA, and what waters the main pollution control law is supposed to keep clean.
Environmentalists want the CWA to cover even the minor wetlands, intermittent streams and other waters that drain (with their pollution) into major lakes and streams. Farmers, real estate developers and business groups chafe against regulations they feel restrict them.
The case could test the mettle of the new Supreme Court,
with its 6-3 conservative majority. Will the Court upset
precedent and apply an anti-regulatory ideology
to hobble long-standing environmental laws?
Both sides expect the case to test the mettle of the new Supreme Court, with its 6-3 conservative majority. Will the Court upset precedent and apply an anti-regulatory ideology to hobble long-standing environmental laws? (We may get a clue this year in a parallel case about the Clean Air Act, West Virginia v. EPA; see our recent Backgrounder on that case.)
And horse-race journalists will be watching the EPA, which is trying to come up with its own improved WOTUS definition — possibly even before the Court does. Will the Court defer? The Court’s next term begins October 2022, and we can expect a decision sometime in the following year.
Few today remember that for some 30 years after the Clean Water Act took its modern form in 1972, a provision known as Section 404 controlled the destruction of wetlands. It did so without too much controversy about what the law was.
If you wanted to discharge “dredged or fill” material into “navigable waters,” which included wetlands, you needed a permit. Permits were issued under a complicated procedure by the Army Corps of Engineers, in consultation with the EPA.
|A volunteer planting wetland grasses as part of an environmental restoration project at Maryland's Poplar Island in the Chesapeake Bay. Photo: U.S. Army Corps of Engineers, Flickr Creative Commons (Public Domain Mark 1.0).|
Environmentalists, meanwhile, made the case for wetlands' many benefits. They furnish habitat for many bird species and other animals, as well as a breeding ground for fish and insects (aka bird food). Some of those birds are migrants who live elsewhere and depend on these boggy way stations.
Wetlands also help moderate both floods and drought, as well as coastal storms. They help control erosion. They filter water, controlling pollution through physical, chemical and biological processes. They offer nature-friendly recreation. And more.
The sad news is that human activity has been destroying wetlands for centuries since European settlers arrived. Experts estimate that we have destroyed about half of the wetlands in the lower 48 since the 1600s.
They often did this deliberately — by draining them, filling them, mining them, polluting them, logging them, farming them, building on them … and many other insults.
A strong tool for protection, weakened
Some (not all) of the best and biggest remaining wetlands have been conserved via land protection laws and set-asides. Many others, small and large, on private land or public, remain threatened.
This is why environmentalists rejoiced in 1972 when Section 404 of the Clean Water Act gave them (and the government) a strong tool for preserving wetlands.
Into this bower of eco-bliss, after 30 years, a dark shadow fell. All this time the real estate developers and farmers (among others) had been complaining about the government taking away their right to do what they wanted with their own lands.
The issue eventually found its way to the Supreme Court. In an effort to clarify the law, SCOTUS only made muddier and murkier what the CWA said on WOTUS.
In the 1985 case U.S. v. Riverside Bayview Homes the Court upheld the Corps’ interpretation that CWA jurisdiction extended to wetlands adjacent to waters themselves adjacent to the lakes, streams and estuaries covered by the CWA.
Enviros cheered that ruling but found no joy in 2001, when the Court in Solid Waste Agency of Northern Cook County v. Corps of Engineers, or SWANCC, rejected the Corps’ previous doctrine and held that the use of isolated ponds by migratory birds could not form the basis of CWA 404 jurisdiction.
Then in 2006, the court muddied things further in Rapanos v. U.S. with a fractured 4-1-4 (in)decision calling even the SWANCC decision into doubt. There was no majority opinion clarifying what waters ultimately were under CWA jurisdiction.
Administrations reverse each other
The Rapanos decision left the EPA and the Corps with little useful guidance on CWA jurisdiction. It looked like they were on their own. Over the next decade and a half, they struggled with the issue and tried to find practical solutions via executive action and rulemaking. That didn’t work, either.
The Obama administration in 2015 issued its “Clean Water Rule,” taking an expansive but tempered view of CWA jurisdiction. Enviros cheered. Business groups slammed it and challenged it in court.
Then, in January 2020, the business-friendly Trump administration issued its own WOTUS rule to the applause of farmers and developers. It was announced at a meeting of the National Association of Home Builders.
But a federal court said it was defective and blocked it in August 2021. The Biden EPA had already announced in June 2021 (may require subscription) that it would restore a version of the Clean Water Rule. That rulemaking process is still going on.
The way-back backstory
What’s a WOTUS, anyway? Why is the Corps involved?
It helps if you realize how water pollution law developed in the United States. It did not start with the CWA of 1972 — no matter how important that law is. The story goes much further back, back to when rivers and estuaries were the main avenues for cargo transport in the early republic.
It is worth realizing that the Corps is a lot older than the environmental movement. It was started right around 1779, mostly for military purposes. But in peacetime, during the 1800s, the Corps developed a political constituency helping the growing nation build and maintain its supply lines.
It was an iron triangle that included patrons in Congress, the executive branch and the industries that conducted and depended on shipping. That involved dredging. It was not about kayaking on pretty rivers; it was about removing the dead-tree snags that could sink a boat.
Congress first passed the earliest CWA ancestor, the Rivers and Harbors Act, in 1824. Its development through generations of amendments was based on the Supreme Court’s interpretation of the Commerce Clause of the Constitution.
One of the earliest, and foundational, water pollution control laws was the Refuse Act, a title of the Rivers and Harbors Act of 1899. The Refuse Act declared it illegal to dump refuse into navigable waters without a permit. The Corps of Engineers administered it and it is still in effect today.
The Refuse Act was aimed partly at industrial pollution. As might be expected, it spawned a lot of litigation. It was eventually supplanted by the Federal Water Pollution Control Act of 1948 — a more immediate ancestor of the CWA.
Addressing the ongoing problem of water pollution
By the 1960s, none of these efforts had succeeded in keeping water pollution from becoming a big national problem, which is why the Clean Water Act of 1972 was welcomed as a revolutionary and effective solution. It was to be administered by a new national agency focused solely on cleanup: the EPA.
The terminology of the CWA goes that far back, and the reasons for using it in 1972 were complicated and political. It acknowledged existing bailiwicks and avoided upsetting apple carts. Hence the Corps’ participation in Section 404.
If we go back to the 1800s, the term
“navigable waters” was a handy tag for invoking
the constitutional commerce power
on which pollution control was based.
But if we go back to the 1800s, the term “navigable waters” was a handy tag for invoking the constitutional commerce power on which pollution control was based. The term was used explicitly in the Refuse Act of 1899.
The 1972 Clean Water Act also authorized the EPA to protect the “waters of the United States.” In fact, it defined “navigable waters” as “waters of the United States.” But the 1972 law did not further define either term.
The EPA’s current position is that Congress’ failure to be any more specific left authority in the hands of the EPA and the Corps to define the meaning of those terms — and to spell out in detail the extent of their own jurisdiction — by use of their regulatory powers.
Issues now before the Court
The current Court may have already demonstrated its capacity (with the leaked Roe v. Wade opinion earlier this spring) for setting aside decades of legal precedent and settled law in order to impose an arguably political agenda. Or not.
We will learn a lot more about its inclinations when it finally hears the case in the next term. Journalists love to infer inclinations from justices’ questions. Watch that space.
Meanwhile, you can learn something by looking closer at the docket, which is already full of filings in the case. Most noticeable is the large collection of amicus briefs from all and sundry interest groups with a stake in the case. Whatever the outcome of the case, their reactions will probably echo these briefs.
We can probably predict that the Court’s ultimate decision (if it can be called decisive) will refer to the terms of the mucked-up Rapanos decision. Rather than look at the law and legislative history, the Court might instead regard itself as the only point of reference worth considering.
Conservatives and anti-Section 404 legions are fond of pointing to Justice Scalia’s opinion in that case as instructive. The opinion, written by Scalia and joined by three other conservative justices (Roberts, Thomas and Alito), drew a very narrow view of the CWA’s reach.
Scalia argued that the CWA applied only to relatively permanent, standing or continuously flowing waters — rather than ephemeral or intermittent waters — with a continuous surface connection as the test. Scalia cited Webster’s dictionary as his authority. This opinion only got four votes (not a majority).
In a partly concurring opinion, Justice Kennedy said the “significant nexus” test set in SWANCC was the right one instead.
One further hint or preview might be found in the Court’s 2020 ruling (may require subscription) in County of Maui v. Hawaii Wildlife Fund. In that case, it held 6-3 that pollutants affecting waters indirectly through groundwater are still subject to the CWA. But that was a different Court.
One tricky point to look for is any extension of the Court’s finding on Section 404 jurisdiction to the CWA’s broader permitting jurisdiction in general. They are not the same thing.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online’s TipSheet, Reporter’s Toolbox and Issue Backgrounder, and curates SEJ’s weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ’s Freedom of Information Project and writes the WatchDog opinion column.
* From the weekly news magazine SEJournal Online, Vol. 7, No. 24. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.