Law360 quoted B&D Principal Drew Silton (Washington, DC) in its article, “Why The High Court Is Diving Into Murky CWA Question.” The article discusses the U.S. Supreme Court’s decision to review Sackett v. EPA regarding how federal courts and agencies determine if waters, particularly wetlands, are “waters of the United States” (WOTUS), such that they are subject to the Clean Water Act (CWA).

The Supreme Court last attempted to define WOTUS in Rapanos v. United States, 547 U.S. 715 (2006), but the court reached a fractured 4-1-4 outcome. Writing for a four-justice plurality, Justice Scalia posited that WOTUS covers relatively permanent waters, as well as wetlands that enjoy a continuous surface connection to them. Justice Kennedy wrote a concurrence proposing a broader test, under which the CWA covers any feature that has a “significant nexus” to traditional navigable waters. Since Rapanos, the definition of WOTUS has remained hotly disputed and has been the focus of multiple regulatory proceedings.

Drew expects that the Court will provide instructions on which test to use, rather than creating a new standard. “I think [the language of the order granting cert] preserves for them the ability to cast their decision as being on fairly narrow grounds,” Drew said. “In other words, making it more about the proper application of Rapanos by the lower courts as opposed to maybe a broader interpretive question. Although I think that could be a distinction without a difference, if substantively, the outcome the justices are driving at is that people should be applying the relative permanence test from the Scalia plurality.”

Drew’s practice focuses on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He, along with his colleagues Richard Davis and Tim Sullivan, authored an amicus brief filed on behalf of a coalition of clean water utilities in the last major CWA case heard by the Supreme Court, County of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020).

Read an analysis that Drew and other members of Beveridge & Diamond’s Water practice wrote here. Read the full Law360 article here (subscription required).