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EPA, federal agencies fail to provide regulatory clarity with latest WOTUS rule

When the U.S. Supreme Court announced in January of 2022 that it would consider Sackett v. Environmental Protection Agency, a years-long case involving the regulatory scope of the Clean Water Act, the Court effectively gave notice that it would be offering its determination on longstanding debates regarding just how far the powers of the law could reach.

Rather than wait for the Court to issue its ruling, the Biden Administration – specifically, the Environmental Protection Agency and U.S. Army Corps of Engineers (Agencies) – charged forward in drafting its version of the “Waters of the United States” (WOTUS), which defines all bodies of water that fall under federal jurisdiction.

As the justices were finalizing their decision on Sackett (oral arguments for the case were provided in October of 2022), the Agencies moved forward and published their initial WOTUS rewrite in January of 2023 – prior to a final Court ruling. The rule was drafted much in the vein of the original “Waters of the United States” rule developed by the Obama Administration in 2015, which went on to be thrown out by several courts before it was ever implemented across the 50 states.

At question in Sackett v. EPA was whether the Sackett family had the right to build a home on private property they owned near Priest Lake, Idaho. While the EPA alleged the residential lot was a federally-protected wetland under their jurisdiction, the Sackett’s asked the Supreme Court to clarify the scope of the Clean Water Act’s authorities.

In their May 2023 ruling, the Supreme Court provided the final answer the Sackett’s had been seeking after spending 15 years in the courts. Unanimously rejecting the “significant nexus” test utilized in both the Obama and Biden Administrations’ WOTUS rules, the Court said that in order for federal agencies to assert jurisdiction over an adjacent wetland under the Clean Water Act, they must establish both that the wetland is adjacent to a federally-protected water and that it has a continuous surface connection with that body of water.

Justice Alito delivered the majority opinion with Justices Barrett, Gorsuch, Roberts, and Thomas joining him, and Justices Thomas, Kagan, and Kavanaugh filed concurring opinions. (MSPC previously covered the ruling here)

A unanimous decision by the Court rejected the core principle of the expanded WOTUS standard utilized by both the Obama and Biden Administrations.

Rather than seeking to provide a holistic, legal standard in light of the Court’s ruling, however, the Agencies moved forward with their rulemaking process by merely cutting the “significant nexus” provision nullified by the Supreme Court.

The Agencies’ new rule lacks a definition of what constitutes a “relatively permanent” body of water, and it fails to exclude from federal jurisdiction all “ephemeral features” that only hold water following rainfall. In their haste to issue a new rule – and in rejecting any public input processes post-Sackett – the Agencies missed an opportunity to once and for all provide the regulatory clarity that so many have been seeking for the past several decades.

That finalized rule was just published in the Federal Register and went into effect on September 8, 2023.

And so, the uncertainty and jurisdictional murkiness continues.

It is important to note that this new rule only impacts 23 states. When the Biden Administration issued its draft rule in January, 27 states successfully secured preliminary injunctions in multiple federal district courts. So, while Washington, Oregon, California, and Nevada now fall under the jurisdiction of the Biden Administration’s new faulty rule, Idaho, Montana, Wyoming, and Utah are guided by a pre-2015 regulatory regime that is consistent with the Sackett ruling.

The Waters Advocacy Coalition, comprised of more than 40 organizations from across the country representing agriculture and small businesses, reacted to the Biden Administration’s finalized rule:

“We have consistently reminded the federal agencies that there are clear limits to their jurisdictional reach, which they have chosen to ignore despite the Supreme Court’s direction in Sackett v EPA,” said Courtney Briggs, Waters Advocacy Coalition chair. “This revised rule does not adequately comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act. Even worse, the agencies blocked public input and engagement in the revision process.”

The federal agencies had an opportunity to work collaboratively and within the law to provide a comprehensive rule that provides clarity and certainty. Instead, they continued down the path taken by the Obama Administration in its 2015 WOTUS rule and will leave far too many farmers, homebuilders, energy producers, small businesses, and local communities in limbo.

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