SCOTUS Strikes EPA’s Expansive WOTUS Definition

June 2023 FloridAgriculture eNewsletter

The United States Supreme Court struck down EPA’s expansive Waters of the United States (WOTUS) definition in a 9 – 0 ruling on Thursday, May 25! The reasoning was split, with five justices (Alito, Roberts, Gorsuch, and Barrett) largely adopting the Rapanos plurality decision on what American Farm Bureau Federation (AFBF) advocated for in their amicus brief. The other four justices (Kavanaugh, Kagan, Sotomayor, and Jackson) thought this went too far in regards to wetlands. Here are some highlights:

· Significant-Nexus Is Dead: SCOTUS basically says that the EPA employs sig-nex to create authority where it otherwise lacks. The judges were unanimous on eliminating significant-nexus.

· WOTUS Definition: The CWA’s use of “waters” encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.

· Wetlands: As for wetlands, the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. This requires the party asserting jurisdiction over adjacent wetlands to establish first, that the adjacent body of water constitutes waters of the United states, (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. Four justices (Kavanaugh, Kagan, Sotomayor, & Jackson) thought this went too far.

· SCOTUS Critical of Past EPA Actions: The majority absolutely eviscerates EPA’s history of ignoring the Clean Water Act, ignoring Supreme Court decisions, and ignoring common sense. The Court describes EPA’s approach as a “freewheeling inquiry” with “weak textual argument[s].”

· Implications on 2023 WOTUS Rule: As EPA was belligerent to bring their new rule into the record even at our request to delay publication of the rule, SCOTUS took that opportunity to thoroughly tear it apart in Section IV. Remember that the Sackett case addresses the pre-2015 WOTUS definition, not the 2023 Rule. As a result, the 2023 Rule remains on the books, but functionally EPA and the Corps cannot enforce it. AFBF’s litigation in Texas and
North Dakota challenging the rule will thus be the likely vehicle to get the rule officially tossed.

Due to the implications on the 2023 WOTUS rule, the EPA and the Army Corps must go back to the drawing board. As this plays out, we will closely scrutinize their efforts to revise the definition of waters of the United States for compliance with the Court’s findings in this case. Those that wish to read the Court’s opinion with highlights of pertinent information can find it here.