The U.S. Supreme Court will again examine the scope of WOTUS under the CWA in Sackett v. EPA, where a couple has asked the court to adopt Justice Scalia’s approach to determine wetlands that are considered WOTUS. The issue at hand derives from a split decision in the 2006 case Rapanos v. United States in which two tests for what constitutes WOTUS were outlined – Justice Kennedy’s significant nexus [to navigable waters] and Justice Scalia’s relatively permanent or directly adjacent [to navigable waters]. The court came to consensus that the CWA does not regulate all wetlands, but a majority of justices could not agree where to draw the line.
EPA has not signaled that this case will affect their WOTUS rulemaking timeline. The current proposed rule consists of the old “pre-2015” definition of WOTUS with the addition of the significant nexus approach from the Rapanos case. EPA plans to do a second rulemaking to further define WOTUS based on stakeholder and public input. AMWA is in the process of developing comments in consultation with the regulatory committee. Public written comments are still being accepted until February 7, 2022.