Last August, when EPA and the Army Corps of Engineers published their tenth attempt to determine the jurisdictional reach of the Clean Water Act, the Agencies said that regulation involved no exercise of discretion because it merely “conformed” EPA's and the Corps' ninth attempt to determine the reach of the Act to the Supreme Court's edict in Sackett v. EPA.
I predicted then that opponents of EPA's and the Corps' “conforming” regulation would say that Clean Water Act jurisdiction can only extend to "wetlands," "tributaries," and "impoundments" with a "surface connection" to what EPA and the Corps call “paragraph (a)(1) waters.” I said that may not make any sense to scientists (and it doesn't), and it most certainly would be the narrowest reach the Clean Water Act has had since the late 1970s (and it is). But Sackett isn't about science. It is about what has become the nation's highest court's judgment about the limits of the Executive Branch's and Judicial Branch's abilities to interpret laws written by the Legislative Branch.
Well the Sacketts' lawyers at the Pacific Legal Foundation have a new client in North Carolina, Robert White, and they have filed suit on Mr. White's behalf in the Federal District Court for the Eastern District of North Carolina alleging, among other things, exactly what I predicted in August.
Interestingly, Mr. White's complaint says that the most recent EPA and Corps regulation “stretches the Agencies' authority to the outer limits of Congress's power under the Commerce Clause." That's more moderate than what Supreme Court Justices Thomas and Gorsuch think, not to mention the plaintiffs in another challenge to EPA's and the Corps' regulation pending in Texas.
But the complaint also says that “most egregiously, the Agencies may maintain that a continuous surface connection [to a navigable water] may even be present where a natural or artificial physical barrier separates a wetland from a covered water.” And that the EPA and Corps regulation continues to extend Clean Water Act jurisdiction to “tributaries,” “impoundments,” and “wetlands” that have a “continuous surface connection” to waters that are not “traditional navigable waters, the territorial seas, [or] interstate waters.”
There is certainly a scientific basis for such Clean Water Act jurisdiction. In fact, such an extension of Clean Water Act jurisdiction would share its intellectual underpinning with the substance of the Supreme Court’s majority opinion just a few years ago in Hawaii Wildlife Fund v. Maui. But Justice Alito's opinion of the Court in Sackett (and his dissenting opinion in Maui) isn't about overwhelming scientific evidence. It is about whether there is “clear evidence that [EPA] is authorized to regulate in the manner it proposes.” And, in Sackett, the Court concluded that the Clean Water Act extends to only those “wetlands” (and other relatively permanent bodies of water connected to traditional interstate navigable waters) with a continuous surface connection to such “waters of the United States” “in their own right.”
Will Mr. White and the Pacific Legal Foundation make it to the Supreme Court before the twenty-six of our nominally United States and others that have challenged the same regulation in other Federal Courts?
Only time will tell but, unless Congress intervenes in the meantime (which seems impossible), I'm afraid the nation's highest court isn't quite done with EPA and the Corps and their attempt to maintain the jurisdictional reach the Clean Water Act has had for the past forty or so years. And, as the Pacific Legal Foundation alludes in the text below, it doesn't look good for EPA, the Corps, and previously jurisdictional wetlands.
