Sierra Club Fights SCOTUS Over WOTUS

Supreme Court of the US

Photo by Joshua Woods on Unsplash

By ELAINE GIESSEL, Chapter Chair

The future of water protection under the 50-year-old Clean Water Act (CWA) looks grim. Instead of celebrating its Golden Anniversary, Sierra Club and other environmental groups are lining up for a U. S. Supreme Court (SCOTUS) battle. This case will have direct impacts on how water resources are protected in Kansas, which is why the Kansas Chapter of Sierra Club is committed to advocating for a strong Kansas Water Plan and legislation that will improve management of our water resources.

Last month, the Sierra Club joined an amicus brief in Sackett v. EPA, urging the Court to uphold the scope of the CWA and to reject attempts to eliminate protections that have our rivers and lakes safe from pollution for decades. Over 100 environmental and community groups urge U.S. Supreme Court to uphold federal clean water protections 

Under pressure from special interest groups, the Trump Environmental Protection Agency (EPA) rejected science and adopted a “dirty water rule” that severely restricted protected waterways, especially in the more arid regions of the United States. Western Kansas stood to lose protection for miles of seasonal tributaries and for significant areas of critical aquatic wildlife habitat. Late last year an Arizona court ruled on a lawsuit filed by 6 Native American tribes and vacated the Trump-era interpretation of the CWA that allowed developers, farmers, and fossil fuel extractors to fill in, pollute, or dredge wetlands and headwater streams.
The decision reinstated some protections for drinking water sources and wildlife habitat, but failed to resolve the critical issue of how “Waters of the U.S.” (WOTUS) are defined. Waterways not included in the WOTUS definition have no protection under the CWA.

Although Biden’s EPA is seeking broad stakeholder imput to help craft a durable definition of WOTUS, those efforts may be doomed to failure. The Supreme Court will hear a case this fall that could determine protections under this bedrock environmental law. Given its current conservative majority, the Court is not likely to guarantee the broad scope of legal protection intended by Congress when the CWA was passed. Previous decisions have not resolved the issue and the next ruling is not expected to embrace the Biden EPA's reliance on science-based policy making.