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Brooks Smith, a partner in Troutman Pepper’s Environmental + Natural Resources Practice Group, was quoted in the June 7, 2023 InsideEPA article, “Lawyers Eye Maui as Potential Avenue for CWA Enforcement Post-Sackett.”
Smith echoed this idea, noting that Justice Scalia, in a previous WOTUS suit Rapanos v. United States, essentially said that “you can’t evade jurisdiction.”
“In Maui it was in the context of 402 NPDES permits, but you couldn’t evade the 402 permit simply by discharging into a noncovered water feature that then was upstream and flowed into a covered feature. So, I read that to suggest, if you were to read Sackett to say ephemeral waters are no longer jurisdictional, and you had a 402 discharge into an ephemeral water, on its face you might say a NPDES permit is no longer required because it’s not a discharge into a [WOTUS]. But I think under the Kavanaugh, Scalia interpretation, you may nonetheless be required . . . to protect downstream waters,” Smith added.
While Craig and Schiff note that court review of this particular issue may stem from a legal challenge to a permit, Smith points to the EPA guidance currently under White House review.
“What I wonder is whether this will bubble up as an appeal to a forthcoming EPA rule… or as an appeal from one of these lower court decisions. I think that actually may influence how the Supreme Court reacts as well,” Smith said.
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