Law Professor: Nebraska Builders, Farmers May be Affected by Supreme Court Case on Water Pollution

Jan. 24, 2022, 5 p.m. ·

Photo of a small creek with green banks on one side and dirt on the near side bank.
Sackett v. EPA aims to further clear up the definition of Waters of the United States, as it applies to pollution permits for tributaries and wetlands. (Photo by Ariana Brocious, Nebraska Public Media News)

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A Nebraska law professor said home builders in the state could benefit from an upcoming Supreme Court case on water pollution.

Anthony Schutz is a professor of law at the University of Nebraska College of Law. He said the Supreme Court case, Sackett vs. the Environmental Protection Agency, will examine The Clean Water Act’s definitions.

“The Clean Water Act requires permits in order to add pollutants to ‘navigable waters,’” Schutz said. “That’s the statutory language. The term ‘navigable waters’ is defined as Waters of the United States (WOTUS).”

Schutz said the bill’s description doesn’t clearly define WOTUS. He said some bodies of water in Nebraska are widely understood as falling under the definition, while it’s less clear whether a permit is required for other tributaries and wetlands.

“The Missouri River of course is covered. Tributaries of those rivers that have water in them all the time, those are covered,” Schutz said. “Beyond that, is sort of where the dispute settles in. So the dispute becomes, ‘how often does water need to be present in a tributary before The Clean Water Act covers it?’”

The Obama Administration broadened what could be regulated after a prior split opinion of the court. Later, the Trump Administration narrowed which channels and tributaries would be covered, then the Biden Administration expanded the scope again.

Schutz said home and commercial builders are the biggest challengers to broad definitions of WOTUS and farmers can be affected in more rare cases. He said it’s conceivable the court could loosen restrictions on where permits are required to dump pollutants and in turn, make building easier.