The Supreme Court is set to weigh in on the Clean Water Act’s reach

When Chantell and Michael Sackett took the feds to court in 2008 for preventing them from backfilling their soggy half-acre lot along the shores of Idaho’s Priest Lake, they had no idea that they were planting the seeds of a case that finally could settle a 50-year debate over the definition of “navigable” and “waters of the United States,” and thereby determine the reach of the landmark Clean Water Act, with especially weighty implications in the arid Western U.S.

Later this year, the Supreme Court will weigh in on the saga when it hears Sackett v. EPA, et al. The Sacketts contend that the wetlands they want to build on do not qualify as “waters of the United States,” or WOTUS, and are therefore not under federal jurisdiction. The Environmental Protection Agency and Army Corps of Engineers, the agencies charged with enforcing Clean Water Act provisions, disagree, saying the wetlands meet the long-standing definition of waters of the United States. 

In 2019 a U.S. District Court ruled for the agencies and a U.S. Appeals Court upheld that decision last year. So the Sacketts, backed by right-wing law firm Pacific Legal Foundation, took their argument to the highest court in the land, now with a conservative majority, in hopes of affirming the late Justice Antonin Scalia’s 2006 definition of WOTUS. In a plurality opinion on Rapanos v. United States, Scalia wrote that waters of the U.S. include only “those relatively permanent, standing or flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes” and not “dry arroyos in the middle of the desert.”

Scalia’s definition potentially would remove federal protections from more than 75% of the rivers and streams in the arid Southwest.

Scalia’s definition potentially would remove federal protections from more than 75% of the rivers and streams in the arid Southwest, including New Mexico’s Rio Puerco and Santa Fe River, Arizona’s Santa Cruz River, numerous tributaries to the Los Angeles River, and thousands of other ephemeral or intermittent streams, despite their ecological significance and the fact that they run bigger than most “real” rivers after a good rain.

This is how the definition of WOTUS has evolved over the years:

1972: Congress passes the Clean Water Act, which is actually a sweeping overhaul of the 1948 Federal Water Pollution Act, to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The law establishes a structure for regulating pollution of “navigable waters,” which Congress defines simply as “waters of the United States.” The Environmental Protection Agency and the Army Corps of Engineers are charged with enforcing the Act’s provisions.

1974: The Army Corps of Engineers defines “navigable waters” to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” It goes on to say that “it is the water body’s capability of use by the public for purposes of transportation or commerce which is the determinative factor.”

1977: The Corps formally defines “waters of the United States” to include “isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” Later that year, Congress passes a suite of amendments to the Clean Water Act, but shoots down a narrower definition of “navigable” waters. 

1985: In United States v. Riverside Bayview Homes, the Supreme Court rules against a Michigan developer that filled in wetlands, thus confirming the agencies’ definition of WOTUS as including waters and wetlands adjacent to or having a “significant nexus” with navigable waters, interstate waters or their tributaries.  

1986/1988: The EPA and Army Corps of Engineers establish expansive regulatory definitions for WOTUS that include all bodies of water, including intermittent streams, mudflats, prairie potholes and so forth, with the exception of wastewater treatment ponds and wetlands that had already been converted to cropland. The agencies also include waterbodies, artificial or not, that are or could serve as habitat for migratory or endangered birds, a provision known as the Migratory Bird Rule (not to be confused with the Migratory Bird Treaty Act).

1989: Without acquiring a permit, Michigan developer John Rapanos drains and fills 22 acres of wetlands in order to build a shopping center, ignoring warnings from state officials and then a cease-and-desist order from the EPA, claiming that the federal government has no jurisdiction over the wetlands because they aren’t traditionally navigable waters. The government argues that the wetlands — which drained via human-dug ditches into navigable rivers and lakes — are in their jurisdiction. A long legal saga ensues, which will culminate in a 2006 Supreme Court case.

2001: The Supreme Court again takes up WOTUS when the Solid Waste Agency of Northern Cook County wants to use an abandoned sand and gravel pit as a dump. The Army Corps of Engineers rejects the proposal because 121 bird species have been observed at the site, meaning it falls under the Migratory Bird Rule definition. The Supreme Court disagrees, ruling that isolated ponds do not fall under the Clean Water Act’s definition of “navigable waters” simply because they serve as habitat for migratory birds. The court does not otherwise clarify or narrow the definition of navigable waters or WOTUS. The EPA and Army Corps nix the Migratory Bird Rule from the WOTUS definition.

2006: Rapanos v. United States reaches the Supreme Court after two lower courts rule in favor of the government, saying that the wetlands’ hydrological connection to navigable waters qualifies them as WOTUS. Instead of clarifying the definition of WOTUS, however, the high court’s 4-1-4 decision remanding the case back to the Appeals Court further muddies the waters. Scalia issues the plurality opinion, in which he says intermittent and ephemeral streams and “dry arroyos” aren’t worthy of federal protection. Justice Anthony Kennedy disputes Scalia’s anti-arroyo rant, saying the narrow definition would leave even major tributaries of the Los Angeles River without protection. He favors the court’s 1985 “significant nexus” criteria, saying such a nexus could not be established by a hydrological connection alone, but rather by a wetland’s status as an “integral part of the aquatic environment.” He leaves it up to the lower courts to decide what that means. In his dissent, Justice John Paul Stevens argues that Scalia’s interpretation would allow the agencies to “regulate polluters who dump dredge into a stream that flows year round but may not be able to regulate polluters who dump into a neighboring stream that flows for only 290 days of the year — even if the dredge in this second stream would have the same effect on downstream waters.”

Justice Anthony Kennedy disputed Scalia’s anti-arroyo rant, saying the narrow definition would leave even major tributaries of the Los Angeles River without protection.

2007: Michael and Chantell Sackett backfill parts of their .63 acre lot along the shore of Idaho’s Priest Lake so they can build a home there. A few days later, EPA officials order them to stop work because the land contained wetlands — or waters of the U.S. — and therefore a permit was required. In 2008, the Sacketts sue.

2008: The George W. Bush EPA responds to the Rapanos decision by defining WOTUS as traditional navigable waters, streams that flow at least seasonally and wetlands that directly abut such tributaries. This approach would decide everything else on a case-by-case basis, applying the significant nexus standard to non-navigable, non-permanent tributaries and adjacent wetlands. It would NOT assert jurisdiction over gullies, low-volume, short-duration-flow washes or gullies, and ditches excavated to drain uplands.

2012: The Sacketts’ case reaches the Supreme Court, but justices are tasked with deciding whether the federal agency’s compliance orders are subject to judicial review, not with defining waters of the U.S. The court rules in the Sacketts’ favor, meaning they can pursue their case. It drags through Idaho courts for years.

2015: The Obama administration issues a new rule clarifying the definition of WOTUS in line with Justice Kennedy’s significant nexus test, noting: “This final rule interprets the CWA to cover those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.” The rule is immediately challenged by several states and industries in the courts. A federal court issues a nationwide stay on its enforcement, leaving the agencies to operate under previous WOTUS definitions. Over the next year, the rule gets batted around by various courts.

2017: The Trump administration issues an executive order calling on the EPA and Army Corps of Engineers to review and rescind the 2015 rule and replace it with a definition in line with Scalia’s Rapanos opinion.

2020: The Trump administration releases “The Navigable Waters Protection Rule” which follows Scalia’s WOTUS definition. Most significantly, it excludes: ephemeral features that contain water only during or in response to rainfall; groundwater; “many ditches”; and isolated wetlands. The rule potentially would exclude as many as 94% of Arizona’s and 66% of California’s streams and rivers from federal oversight, depending on how regulators interpret it.

The rule potentially would exclude as many as 94% of Arizona’s and 66% of California’s streams and rivers from federal oversight.

2021: An Arizona U.S. District Court vacates Trump’s rule in its Pasqua Yaqui Tribe v. EPA ruling, reinstating the pre-2015 WOTUS definition.

2021: In November, the Biden administration proposes a new WOTUS rule re-establishing the 1986 definition, amended to abide by a ‘‘significant nexus standard,’’ meaning “waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.” The public comment period closes Feb. 7, 2022.

2022: The Supreme Court agrees to hear the Sacketts’ case. It has not set a schedule for arguments.

Far more than just an exercise in semantics, the decision on definitions will also be a ruling on the reach of federalism and states’ rights. If the majority of justices agree with Scalia, they will be putting the fate of hundreds of waterways and wetlands into the hands of their respective states. If, for example, an Arizona home developer wants to pave over arroyos and ephemeral streams to build a subdivision, it will be up to state regulators to decide whether the project can go forward, not the federal agencies.

Regardless of what the court decides, the tussle over whether an arroyo is a river promises to drag on for another half-century, at least.

Jonathan Thompson is a contributing editor at High Country News. He is the author of Sagebrush Empire: How a Remote Utah County Became the Battlefront of American Public Lands. Email him at [email protected] or submit a letter to the editor. See our letters to the editor policy.

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