2020 Environmental Real Estate Issues

In a move likely to end the ongoing struggle with the definition of “waters of the United States” (WOTUS) as the term relates to ephemeral streams, which have flow for just a short time, the US Supreme Court has agreed to hear a case on that issue.

On January 24, 2022, the Court accepted the writ of certiorari in Sackett v. EPA with the following sentence: “The petition for a writ of certiorari is granted limited to the following question: Whether the Ninth Circuit set forth the proper test for determining whether wetlands is ‘waters of the United States’ under the Clean Water Act, 33 U. S. C. § 1362(7).”

No Majority in Rapanos
In its decision, the 9th Circuit applied the “significant nexus” test articulated in a concurrence in the Rapanos case by Justice Kennedy to determine WOTUS, rejecting a stricter standard urged by Justice Scalia. However, the Court at that time was fractured and neither Justice Kennedy’s test nor Justice Scalia’s standard won a majority.

Current Court Has a Scalia Oriented Majority
The current Supreme Court is not so fractured.  The three judges that agreed with Justice Scalia in Rapanos are still on the Court, along with three Trump appointees, all of whom will likely agree with Justice Scalia, who categorically stated “waters of the United States…does not include channels through which water flows intermittently or ephemerally…” The expected replacing of Justice Breyer will not change the Court’s positioning on the issue.

By accepting the case, it appears the US Supreme Court will finally end the ongoing struggle in applying the definition of WOTUS to ephemeral streams and conclude WOTUS does not include them.