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Supreme Court to Weigh in on Wetlands under WOTUS; EPA Sticks to WOTUS Definition Deadline

Date: January 28, 2022

Last Monday, the Supreme Court agreed to review the jurisdictional scope of the federal Clean Water Act (CWA) and Waters of the United States (WOTUS) in the case of Sackett v. EPA. The Court will weigh in on the legal test used to determine if a wetland is protected under the federal law. Sackett is asking the court to reject the “significant nexus” test applied by the U.S. Court of Appeals for the Ninth Circuit. The “significant nexus” test comes from the 2006 decision in Rapanos v. United States by Justice Anthony Kennedy. Sackett is asking the Supreme Court to apply a test in which wetlands must have a “continuous surface connection” to navigable waters for them to be regulated under CWA, a test that came from the Rapanos plurality decision stated by Justice Scalia.

Currently, EPA and Army Corps of Engineers have a proposed re-definition of WOTUS open for comment through February 7. The revised definition removes an exemption for water recycling installations, including constructed wetlands, under its proposed redefinition of WOTUS which would likely impose additional regulatory burdens on water recycling facilities. The Administration has indicated that it does not intend to extend the comment period on the proposed definition despite the overlap with the Supreme Court case.

WateReuse will be submitting comments on the proposed WOTUS definition. Please reach out to Aliza Furneaux with any questions.

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