Bryan Moore Shares Insights with Law360 on Recent SCOTUS Decision's Impact on Clean Water Act Regulation

Bryan Moore, partner in the Austin office and member of the Environmental & Natural Resources Practice, authored an article for Law360, published on Feb. 4, 2022, on the impact of the U.S. Supreme Court’s decision to revisit the reach of the Clean Water Act on Jan. 24, 2022, by granting the petition for a writ of certiorari in Sackett v. U.S. Environmental Protection Agency.

In the article, Bryan shared that SCOTUS’ decision to weigh in on this issue will likely provide long-term clarity to the uncertainty that has plagued jurisdictional wetland debates for decades by defining the wetlands that fall into “waters of the United States” or WOTUS. 

Additionally, Bryan explains that the wetlands test set forth by the U.S. Court of Appeals for the Ninth Circuit was the “significant nexus” test fashioned by then-Justice Anthony Kennedy in his concurring opinion in Rapanos v. U.S. in 2006. The court’s Rapanos decision did not provide a clear judicial standard, and there has been much regulatory uncertainty within the past 15 years.

In terms of timing, Bryan writes that the Sackett case will likely be decided by the end of the year or early 2023. The court’s forthcoming opinion in Sackett will not appease all sides of the WOTUS debate, but the court has an opportunity to narrow the issues going forward by establishing the proper test for determining whether wetlands are WOTUS. 

At Balch, Bryan helps industrial, commercial and oil and gas industry clients navigate and resolve contested environmental permitting proceedings, compliance audits, enforcement actions and litigation so they can construct, operate and expand their facilities. Bryan’s practice focuses on solid waste regulation, environmental litigation, and contaminated property assessment and remediation.