Supreme Court agrees to pick up appeal over WOTUS interpretation

Alan Bailey

for Petroleum News

The U.S. Supreme Court has agreed to review a 9th Circuit Court of Appeals ruling, upholding the Environmental Protection Agency’s interpretation of what constitutes the waters of the United States, or WOTUS. This issue is critically important in Alaska, with its myriad of waterways and wetlands - activities that may impact water bodies that are part of WOTUS are subject to federal regulation and permitting.

Although WOTUS clearly encompasses navigable waterways that can support interstate commerce, those waterways can be impacted by pollution from tributary waterways. And those tributary waterways can, in turn, be impacted by adjacent wetlands. So, where exactly does federal jurisdiction end? And at what point does federal jurisdiction unacceptably impact state jurisdiction?

In 2006, in a previous WOTUS court case that ended up in the Supreme Court, the court issued a split decision, with the justices being divided between a relatively narrow WOTUS definition and a more expansive view. Following that case there has been continuing confusion over the WOTUS definition. In 2015, for example, the Obama administration expanded the definition, while the Trump administration subsequently shrank it. The Biden administration has been making moves to expand it again.

The legal case in question results from the decision in 2004 by a couple in Idaho to build a house in wet ground near a lake. After the couple had filled the building lot with sand and gravel, in preparation for construction, the Environmental Protection Agency ordered them to restore the building site to its original condition. The EPA claimed that the site included WOTUS wetlands subject to protection under the Clean Water Act.

In 2008 the couple sued the EPA in the Idaho District Court. After the District Court found in favor of the EPA, the case was appealed to the 9th Circuit. Then, after the 9th Circuit upheld the District Court decision, the case was appealed to the Supreme Court. The 9th Circuit judges had commented that the wetlands encompassing the proposed building site are adjacent to a jurisdictional tributary feeding a waterway into a lake that is a traditional navigable waterway.

In October the State of Alaska joined the brief in the Supreme Court appeal.

In accepting the case, the Supreme Court said that it will limit its review to the question of whether the 9th Circuit “set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.”

- ALAN BAILEY