It’s been nearly two years since the Supreme Court handed down a decision in the Sackett v. EPA case that reined in the Environmental Protection Agency’s (EPA) authority over certain wetlands. Now that a public comment period has closed, regulations are one step closer to aligning with that ruling.
In mid-March, the EPA and United States Army Corps of Engineers announced their intent to review the definition of “waters of the United States,” otherwise known as WOTUS. The definition of WOTUS guides which water bodies the federal government can regulate under the Clean Water Act.
As part of their review, the agencies aim to bring their regulations in line with the Supreme Court’s 2023 ruling in the case Sackett v. EPA. The decision narrowed the scope of the agency’s authority in regulating wetlands that are not directly adjacent to traditional navigable waters.
“It is time for EPA to finally address this issue once and for all in a way that provides American farmers, landowners, businesses, and states with clear and simplified direction,” EPA said in a news release.
The agencies asked for public input by Aril 23 to help guide any administrative action. Input was requested on the scope of “relatively permanent” waters and to what features the phrase applies, the scope of “continuous surface connection” and to which features it applies, and the scope of jurisdictional ditches.
Recommendations
The Pacific Legal Foundation (PLF) was one of the groups that submitted recommendations for enforcing Clean Water Act regulations. The group represented Chantell and Mike Sackett in the landmark Supreme Court case, and said the government is still not complying with the justices’ ruling.
“This is no small matter,” PLF said. “The agencies define ‘discharge of a pollutant’ broadly enough to penalize ordinary land use activities like operating a plow or digging a few small ponds to protect one’s family home from fire.”
PLF continued, “This in turn means that the agencies’ unchecked approach to “navigable waters”—extending their authority to fields, ditches, and puddles—has subjected private landowners in every corner of the country to crushing civil and even criminal liability for engaging in ordinary land use activities on otherwise dry lands.”
In response to the agencies’ request for stakeholder input, PLF submitted recommendations for the following topics:
• “Relatively permanent” waters: Any future regulatory definition of WOTUS must limit agency regulation to conventionally defined geographical features that could be described as streams, oceans, river and lakes. In addition, minimum flow volume and duration requirements must be set to limit agency regulation to such features that contain continuously flowing or standing water for a majority of the year.
• “Continuous surface connection”: The updated WOTUS definition must incorporate the central indistinguishability requirement for wetlands authority as ruled in Sackett v. EPA, categorically exclude wetlands separated by any natural or artificial physical barrier, and explicitly state that only continuous aquatic surface connections to covered waters may be regulated under the Clean Water Act.
• “Navigable” and “of the United States”: Address the meaning of these statutory phrases, and follow the Sackett conclusion that the Clean Water Act implements only Congress’ “traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.”
PLF said its recommendations are vital to ending the “decades of unlawful and overreaching Clean Water Act regulation that private property owners across the United States have suffered.” — Anna Miller, WLJ managing editor
