Chapter 5 Sackett v. EPA and Clean Water Act Jurisdiction: Immediate Impressions
Jurisdiction | United States |
Chapter 5 Sackett v. EPA and Clean Water Act Jurisdiction: Immediate Impressions
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JOAN CARD is a partner in the law and policy firm, Culp & Kelly, LLP, which, along with its affiliate, CK Blueshift, LLC, assists clients and partners in addressing the critical issues surrounding water, natural resources management, and environmental issues, principally in the American West. Joan is an attorney and former administrator with more than 25 years of combined private sector, federal, state, local, and non-profit experience. Joan is a solutions-oriented strategic and legal advisor serving clients in environmental and water quality matters and in innovative and sustainable water utility and urban water management. Joan has held several senior executive government positions, including Arizona Water Quality Division Director and EPA Region 8 Senior Policy Advisor. She has held numerous gubernatorial appointments to state and interstate environmental boards and commissions, most recently the Colorado Water Quality Control Commission.
This paper, prepared for the Foundation for Natural Resources and Energy Law is an annotated transcript of a podcast called "Ripple Effect" published by the law firm Clyde Snow and Sessions. The podcast host is venerable water law attorney, Emily Lewis, another presenter at the 2023 FNREL Water Law Institute, and the interview transcript is used for this purpose with her permission. The podcast, RIPPLE EFFECT EPISODE 134: SACKETT V. EPA—WHAT ABOUT OUR CLEAN WATER?, was published on June 5, 2023, and is available at: https://www.clydesnow.com/media/blogs/podcasts/ripple-effect-episode-134-sackett-v-epa-what-about-our-clean-water/. The transcript has been slightly edited to address the "ums," "ahs," and extra "ands" and "sos" (so much "so"!) and the idiosyncrasies of extemporaneous speech generally.
The interview was recorded days after the United States Supreme Court issued its slip opinion in Sackett v. EPA.1 The process of annotating the interview with citations to authority, providing context and clarifications, and addressing a few errors for this paper has been both humbling and nostalgic. This paper (and the podcast on the Clyde Snow website) presents a window into the past, and with the annotations, hopefully, an informal and informative viewpoint on the current state of Clean Water Act jurisdiction--the "waters of the United States" component, at least. I was going to call that "state" a "morass" and looked up relevant synonyms. The synonyms for "morass" happen to include, "quagmire," "marsh," "swamp," "slough," "fen," "bog," "wetland....2
Narrator: This podcast is brought to you by the law firm of Clyde Snow and Sessions based in Salt Lake City, with offices in Oregon and California. For over 65 years, Clyde Snow has represented clients throughout the West. Clyde Snow--serious about solutions.
Emily Lewis: Hello and welcome to Ripple Effect, a podcast putting water into context. I'm Emily Lewis, your host, and I'm a water attorney here in Salt Lake City, Utah, practicing creative solutions to today's and tomorrow's water problems. Welcome to the conversation. Hello and welcome to Ripple Effect. I'm very excited for today's episode because it is incredibly timely and has real-world applications to many, many folks and water users in the broader water community. Also, this is an opportunity to interview one of my favorite water practitioners here, Joan Card. Joan is a partner at Culp & Kelly. And Joan was actually one of my very first five
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podcasts several years ago where we talked about the very topic we're going to talk about today.
Joan Card: That's right, Emily. I think it was during the pandemic and we had some technical difficulties, but we got our way through it.
Emily Lewis: Yes. Well, those don't always go away.
Okay, Joan, so I think the reason that I really wanted to have you on today is because I really want to talk about the "waters of the United States" and the recent "Sackett versus EPA" decision coming out of the Supreme Court.3 For those who are in the water community, the "waters of the United States" rule and the Clean Water Act has been a fervent topic of discussion without a lot of clarity for now almost 10 years. A lot of bouncing back between administrations, various court rulings, and so the most recent ruling is kind of the culmination of a lot of activity. And so I'm very excited to have you here today to talk us through where we've been, where we are, and what that means going forward. So, before we chat though, Joan, would you just give just a brief background, just a few minutes about how you came to the practice of law and your water work?
Joan Card: Sure. I won't go too far back in time, but I went to law school wanting to be an environmental or natural resources practitioner. I've always had an interest in that. I grew up in Utah, spent a lot of time outdoors in and around water in the Intermountain West, so was so happy to land a job in Arizona doing environmental protection work for the Arizona Attorney General. Ultimately, that led to a job doing legal work on the lower Colorado River with the Bureau of Reclamation and the Department of the Interior. Then I became Water Quality Division Director at the Arizona Department of Environmental Quality and it was in that job that I really got into the nitty gritty of Clean Water Act administration and Clean Water Act jurisdiction issues that happened to also be when a key Supreme Court decision was issued, the Rapanos case,4 which we'll probably talk about a little bit here as a setup.
Emily Lewis: Prescient. Very fortuitous. Yes. Awesome. Okay. So, sounds like a spectrum of real-world applications, both from the regulatory side but also in the private side, helping clients navigate the world of water quality.
Joan Card: And to fully answer your question, eventually after a long career in government made my way to Culp & Kelly, LLP, practicing water quality and environmental law. And this is certainly right in that vein.
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Emily Lewis: Well Joan, we're very excited to have you here today and share your expertise with us, and I'm very excited to just kind of dive right in because this is a ruling that has large implications to the water user community and a very interesting and storied history. To kind of set the stage, Joan, can you talk a little bit about the history of the WOTUS5 rule and some of the background that happened before we got to where we are today?
Joan Card: Sure. WOTUS refers to "waters of the United States" and "waters of the United States" is the phrase that Congress uses in the Clean Water Act to define "navigable waters" of the United States.6 And that defines Clean Water Act jurisdiction. "Waters of the United States" defines the jurisdiction of the Clean Water Act and when, among other requirements, the permitting requirements of the Clean Water Act apply to discharges, for example, of pollutants or discharges of dredge and fill material. So, "water[s] of the United States" was a phrase used by Congress, but it wasn't fully defined by Congress.7 And so it was up to the agencies that administer the Clean Water Act, the Army Corps of Engineers and the Environmental Protection Agency, to define "waters of the United States."8 And they've done that over several decades now through regulations.9
Emily Lewis: And can you just explain a little bit just about the regulations on that? So, for implementing the tenants of the Clean Water Act when and how it applies, those regulations are also set by the administration and power as well. Those can change from year to year. Those are under the auspices of the EPA, correct?
Joan Card: Right. And in partnership with the Army Corps, they jointly do the regulations, especially lately. So, there were regulations in the seventies, there were some relatively minor amendments in the eighties. And then we had the Rapanos decision from the United States Supreme Court, which ended up being a fractured decision about what "waters of the United States" are from the Supreme Court's perspective. And that was in 2006. So, following that decision, ultimately in 2015, a new "waters of the United States" rule was written by the agencies,10 and that's kind of where everything got a little bit crazy and a little bit hard to track,11 and there was a lot of uncertainty and political back and forth since about 2015.
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Emily Lewis: So Rapanos came out in 2006, kind of created a novel interpretation of what qualified as a "water of the United States" upsetting the apple cart a little bit, right. From how things have been interpreted to date. So, the decision came out in 2006 and then realistically 2015 is when that decision really rolled down into actual applicable rules issued by the agency that a water user would actually have to comply with.
Joan Card: And then those rules were challenged in court across the country. The court put a stay on that rule in most of the states in the country eventually.12 And then we got a new President and a new Administration who rescinded that rule13 and ultimately promulgated a rule of their own.14 And that was challenged in court. And then we got a new administration who did the same thing, and that's the Biden Administration. They promulgated a regulation.15 And now that we have the Sackett opinion, I think there's real questions about aspects of that regulation and their compliance with the holding of the Supreme Court.16
Emily Lewis: 2015 is the Obama rule, right?
Joan Card: Right.
Emily Lewis: And the Obama rule, excuse me because I'm not a water quality expert, the Obama rule basically codified the ruling of Rapanos, the key term is "significant nexus." So basically, determining what, because for those who aren't...
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