The US Supreme Court released their decision on the Sacket v. EPA – WOTUS case. The Supreme Court found in favor of the Sacket, which is a positive decision for the aggregate industry. See article from Rock Products Magazine.
John Brooks, VTCA Aggregates Environmental Committee Chair shares his thoughts on the decision below:
"This is great dialogue that will likely take months to completely sort out to form a new definition of waters of the United States through a “2023” WOTUS Rule. The Sackett Ruling provides a clear path or test to determining the limits of the Clean Water Act and removes the more arduous and less clear “Significant Nexus” test proposed by Justice Kennedy in Rapanos.
There was a lot of finger wagging by SCOTUS to the EPA and COE for not hearing them clearly on the several preceding cases (SWANCC, Rapanos, etc..) that provided boundaries to the limits of CWA jurisdiction, and to which the EPA, COE and several administrations ignored by crafting WOTUS Rule. SCOTUS was deliberate in explaining and framing their decision by explaining it step by step. SCOTUS provides clear definition of waters of the United States, not to extend beyond that which would be traditionally navigable in fact, where we can use the “canoe test” as the limits of what would be considered traditionally navigable. In summation, it appears that SCOTUS provides for the CWA to provide jurisdiction over wetlands when a continuous surface connection to bodies that are “waters of the United States’ in their own right”, in as far as the wetlands are “indistinguishable” from those waters.
Jurisdictional wetland must show a clear and continuous surface connection to perennial water bodies (waters of the Unites States) connected by flow the TNWs (navigable waters of the United States). I believe this captures intermittent streams and those wetlands connected to those streams as in both situations a clear and continuous surface connection to perennial water bodies or streams can be easily seen or demonstrated as asserted in Bayview Homes as adjacent or abutting wetlands, as Justice Kavanaugh reiterates in his opinion. Moreover, the fact that the dissenting opinion only railed on “adjacent wetlands” not being limited to adjoining wetlands; I believe this is where most will define the limits of jurisdiction of waters of the U.S. The overarching ruling appears to be mostly silent on and thus eliminate ditches, ephemeral streams, and truly isolated wetlands from the scope of waters of the United States.
Those previous classes of “jurisdictional waters of the U.S.”, have been regulated by individual states under state laws. This appears to be the stance of SCOTUS in multiple previous cases on which SCOTUS has provided rulings. In any case, it also provides Congress a clear path to also embark on law making to clarify the CWA in a way to be more easily understood and less likely to be misunderstood.
This puts us firmly in a pre-2015 WOTUS definition and may in fact roll us back to pre-2000 WOTUS definitions where ephemeral streams were not included – as they were introduced in the pre-amble of the Nationwide Permits in 2000. I do not believe these changes will affect to any great degree on how we conduct business or delineate/define wetlands and waters of the U.S. in the Commonwealth of Virginia; however, in other states this could be a different case based on how each state regulates “wetlands” and other waters of the State."
The full Supreme Court decision can be found here.