Considering the impact of Sackett v. U.S. Environmental Protection Agency on wetland/stream protection laws: U.S. Senate Committee on Environment and Public Works Hearing | Mitchell, Williams, Selig, Gates & Woodyard, PLLC



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The U.S. Senate Committee on Environment and Public Works held a hearing on October 18th entitled:

Consideration of the Clean Water Act Impact of Sackett v. U.S. Environmental Protection Agency on Protection of Wetlands and Streams (“Hearing”)

“Delaware State Commissioner Tom Carper said: hearing the purpose:

. . . consider the meaning of the Supreme Court’s decision in Sackett v. Environmental Protection Agency For the wetlands and streams of our country.

The Chair further stated:

Although the Clean Water Act has had great success in cleaning our nation’s waters and slowing wetland loss, Saket This decision jeopardized nearly half a century of progress under this bedrock environmental law.

The U.S. Supreme Court issued an opinion on May 25th. Sackett vs. EPA et al. Addresses the scope of the Clean Water Act definition of “waters of the United States” (“WOTUS”). A petition for a writ of Certiorari was granted to address the following questions:

Whether the Ninth Circuit established an appropriate test to determine whether wetlands are “waters of the United States” under the Clean Water Act, 33 USC § 1362(7).

The Supreme Court’s majority opinion significantly narrowed the scope of what constitutes WOTUS for purposes of the Clean Water Act.

The majority articulated a two-part process for determining WOTUS.

  1. The CWA’s use of “waters” in §1362(7) refers only to “geographical.”[al] Features described in common parlance as “streams, seas, rivers, lakes,” and even adjacent wetlands that are “indistinguishable” from those bodies of water by continuous surface connections.
  2. To assert jurisdiction over an adjacent wetland under the CWA, a party must “first ensure that the adjacent wetland is [body of water constitutes] . . . ‘water[s] of the United States (i.e., relatively permanent bodies of water connected to traditional interstate navigable waters). Second, wetlands have a continuous surface connection to their water, making it difficult to determine where the “water” ends and the “wetland” begins. ”

The WOTUS definition is perhaps one of the three key jurisdictional terms in the Clean Water Act. The scope of the WOTUS definition has been the subject of frequent litigation, legislative oversight, rulemaking, and public policy debate since the enactment of the modern version of the Clean Water Act in 1972.

The opinion rejected the U.S. Environmental Protection Agency’s (“EPA”) request for the Supreme Court to delay the agency’s latest rule, which utilized a critical nexus test.

Because of the Saket Following this decision, EPA and the U.S. Corps of Engineers issued a final pre-publication rule on August 29 amending the Clean Water Act’s definition of WOTUS. This rule significantly narrowed the scope of what constitutes WOTUS under the Clean Water Act.

Witnesses of October 18th hearing Includes:

  • Dr. Mazeika Patricio Sullivan Director and Professor, Baruch Coastal Ecology and Forest Science Institute, College of Forestry and Environmental Conservation, Clemson University
  • Courtney Revels, Water Justice Organizer, Bayou City Water Manager
  • Susan Bodine, Global Water Law Partner

Links to witness statements and hearing minutes can be found here.

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