Background

Chevron deference (“Chevron”) has been a cornerstone principle of administrative law for nearly forty years. Essentially, Chevron requires courts to defer or rule in the agency’s favor when a statute is the basis for a Court’s decision on an issue before it. Under Chevron, the Court’s decision is limited to determining whether the agency’s action was permissible based on the agency’s interpretation of the statute.

The Chevron Two Step

There are two steps to the Chevron doctrine. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an interpretation within the vague boundaries of the law, then the Court cannot implement its own interpretation through statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if step one is satisfied then it is very likely the agency will succeed on step two.

Chevron & Herring Fishing Regulations

Chevron will be under review by the Supreme Court as a result of herring fishery regulations. However, the Court made clear that any published opinion will solely be interpreting the extent to which Chevron is a Constitutional doctrine. It did not accept review as to whether federal agencies correctly interpreted the law. The issue at hand arose from federal agencies requiring fishers to absorb the cost of their own third-party monitors when there are no available federally funded observers. Such third-party monitors can cost up to 700 dollars a day. These expenses result from some herring vessels spending multiple weeks at sea and the costs of private observers becomes prohibitively expensive.

Should Chevron Stand?

However, for the vast majority of interested parties, the plight of the fishermen is of little interest. The crux of the issue is whether Chevron should stand. If is overruled, then the current status of administrative law will be turned on its head. For those defending the Chevron doctrine, they believe that the judge should not be interpreting a vague legislative directive. Rather, if there are multiple reasonable interpretations, it should be Constitutional for the agency in charge of carrying out the statute’s directive to decide. Those dismissive of Chevron and its nearly 40-year legacy find the doctrine to be unconstitutional and a perversion of federal power. Allowing administrative agencies to act as the legislative branch removes the responsibility of elected representatives and entangles the branches of government.

Chevron has arguably harmed agencies and has been a negative to the American public. Agencies are quietly transformed during each Presidential administration. Agency appointees by the new administration will institute new rule making, often in direct conflict with past statutory interpretations. This apparent discrpancy is due to the vastly permissive nature of Chevron deference. Thus, Americans become ensnared within an oscillating political vacuum regarding laws that impact everyday life.

Conclusion

Agencies, courts, and the legislature have been reliant on this doctrine for decades. A full or partial overruling by the Supreme Court would result in a seismic shift in operations of administrative law. As the decision will inevitably cause change within water law, Schroeder Law will thoughtfully guide clients through these turbulent times. Follow along with the Chevron doctrine by watching for updates on our blog: Blog – Schroeder Law Offices, PC (water-law.com).

Democrats in the U.S. House of Representatives have taken action to clarify the Clean Water Act following the Sackett decision, introducing new legislation into Congress in October of 2023. The purpose of the “Clean Water Act of 2023” is to counteract the narrow interpretation of the term “navigable waters” set forth in the Supreme Court’s Sackett II. Text of the proposed bill criticizes the Court’s decision for eliminating protection for wetlands that “perform vital functions such as sorting water to help reduce flooding, improving water quality by filtering pollutants, providing critical and important habitats for aquatic and other species, and recharging groundwater that provides drinking water and contributes to downstream flow.”  

 Importantly, the Act intends to widen the definition of “waters of the United States.” Restrictions, however, do remain as to not extend federal purview to all collections of water. The greatest emphasis is on the definition of “wetlands”, the source of contention in Sackett II. If the Act were to pass, wetlands would now be defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstance do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” This definition, of course, would circumvent the narrowing of the “water of the United States” that resulted from the Sackett II decision.

While there is little evidence to believe the proposed Act will become law, it is important to be aware of new legal developments that can and will affect water rights throughout the country. Currently, the proposed bill is in the early stages of the legislative process. At this time, the House and Senate have not yet considered the Clean Water Act of 2023.

Additional Resources

For the entire text of the proposed amendment to the Clean Water Act: CWA 2023 Bill Text (house.gov)

For more information on the Sackett Decision that sparked this Act: WOTUS: a Confusing Legacy – Schroeder Law Offices, PC (water-law.com)

The Clean Water Act’s extension of what waters it attempts to regulate is leaves WOTUS a confusing legacy. Does it apply to wetlands? If so, what if wetlands stand alone and don’t adjoin navigable waterways? The courts have been adjudicating questions like these for year. But earlier this year the US Supreme Court gave a definitive answer – for now.

What Happened?

There is no denying the positive changes that the Clean Water Act has rendered as once flammable waters again being fishable, boatable, and even swimmable. Even so, the definition of “waters of the United States,” that defines the reach of the federal government’s regulation of water, is controversial. On May 25, 2023, the U.S. Supreme Court decided in Sackett v. Environmental Protection Agency (“EPA”)how “waters” are to be defined for purposes of the CWA.

Background

To understand Sackett, we must begin with looking at Rapanos v. United States, 547 U.S. 715 (2006). Rapanos, found there are two tests to define “waters of the United States.”

• The “Plurality Test,” a two-prong test, that defines water of the United States as “(1) a relatively permanent body of water (2) connected to traditional interstate navigable waters.”
• The broader “significant nexus test.” Under this test “the wetlands, either alone or in combination with similarly situated lands, significantly affect the chemical, physical and biological integrity of the waters understood as “navigable,” are considered among the “waters of the US.”

The Sackett Decision

These two conflicting tests did not resolve the issue.

But now the May 2023, Supreme Court decision determined that the “Waters of the United States” extend “only to geographical features that are described in ordinary parlance as ‘stream, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from bodies of water due to a ‘continuous surface connection’.” Sackett v. EPA, 143 S. Ct. 1322, 1336 (2023). This decision adopted the plurality test from Rapanos reasoning that the significant-nexus text could grant endless jurisdiction and importantly interfere with State jurisdiction. 

WOTUS as a Confusing Legacy

The Supreme Court’s decision admitted there is obvious need for exceptions to it’s bright line rule such as when there are interruptions in surface connection because of low tide or dry spells to disrupt “continuous surface connection.”  Thus, it is evident that wetlands have not seen their last day in court.

As an ever evolving body, water law can be a confusing field. Here at Schroeder Law Offices, we help our clients by finding answers and making the complex appear simple. If you have any questions about how this affects your water rights, please contact us at (503) 281-4100 or m.jones@water-law.com.