Supreme Court to Hear WOTUS Case

The Supreme Court of the United States (SCOTUS) agreed to hear Sackett v. EPA in an order released January 24, a case that could have significant implications for the definition of “waters of the United States” (WOTUS) subject to Clean Water Act regulation. The case began when plaintiffs Chantell and Michael Sackett challenged a ruling determining that a Clean Water Act permit would be required for construction on their property. The plaintiffs have asked the Supreme Court to provide a definitive answer on the definition of WOTUS.

The high court previously ruled on WOTUS in the 2006 Rapanos v. United States decision, with the court split 4-4-1. Without any opinion gaining a majority of the votes, it has been unclear which opinion sets forth the controlling definition. Courts have generally favored former Justice Anthony Kennedy’s opinion that WOTUS must have a “significant nexus” to “navigable waters”, but the resulting ambiguity has led to attempts to clearly define WOTUS under the Obama, Trump, and Biden administrations. EPA currently intends to continue their current WOTUS rulemaking while the legal challenge proceeds.

It is currently unknown whether SCOTUS will hear the case this term and potentially issue a ruling this June, or postpone oral arguments to the fall in which case a ruling would be expected no earlier than early 2023.