Why the High Court Is Diving Into Murky CWA Question

The US Supreme Court said it will be weighing in on how federal courts and agencies should determine whether a water body is subject to the Clean Water Act’s jurisdiction. The justices are expected to look at the correct legal standard courts should use in figuring out if a federal agency correctly determined whether a water body is a “water of the United States,” or WOTUS.

Bracewell’s Ann Navaro told Law360 that the question is “critically important” because of its real world consequences. The Obama and Trump administrations took unsuccessful cracks at developing a regulatory definition for WOTUS, and now the Biden administration is giving it a go. The back and forth has created uncertainty for regulators, project proponents and environmental advocates.

“When jurisdiction changes frequently and unpredictably, it is very difficult for anyone, from small property owners who just want to build a house to big developers making long-term plans, to have a good sense for how much it’s going to cost them to pursue whatever plans they have,” Navaro said.

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