Another Look at Waters of the United States

On October 18, 2022, we wrote about Sackett v U.S. Environmental Protection Agency, ____ US ____ (No. 21-454).

We wrote, the question presented in Petitioners’ brief is, “Did the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. Sec. 1362(7)?”

The logic of the designation is difficult to follow.  The property is across the street from Priest Lake, Idaho.  The lake is navigable water.  There is no water path from the lake to the Petitioners’ parcel.  A thirty-foot wide paved road separates the land and lake from the Sacketts’ property.

The EPA acknowledges that there is no stream, river, lake or similar water body on the parcel.  It also acknowledged there is no surface-water connection between the Sacketts’ lot and the wetlands complex on the other side of the road.  Yet, EPA and the Ninth Circuit nevertheless concluded that the Sacketts’ lot was similarly situated to those across the street wetlands. 

The term “navigable waters” was defined in Rapanos v United States, 547 US 715 (2006).  In Rapanos, the plurality defined “navigable waters” as traditional navigable water capable of use in an interstate commerce and non-navigable but relatively permanent rivers, lakes and streams as well as abutting wetlands with a continuous surface water connecting to traditional navigable waters.

The decision in Sackett v U.S. Environmental Protection Agency is expected by June 2023.

The Department of the Army began the process of revising the definition of the term Waters of the United States (WOTUS).  After the new administration took office in 2021, further study was conducted and a new final rule was recently published.  The changes are scheduled to take effect this year if currently pending challenges are unsuccessful.  The definition is significant for a multitude of land uses, as it places limitations on activities that may be conducted within and adjacent to such waters or, in some instances, requires the issuance of permits before certain activities may be conducted.

The Clean Water Act (the Act, 33 U.S.C. 1251 et seq) enacted in 1972, established the need to regulate navigable waters to prevent pollution.  The Act gave broad discretion to the EPA and Department of the Army to adopt regulations deemed necessary to implement the Act.  As a result, the term Waters of the United States has been given a definition that is broader than might immediately seem apparent.  By including adjacent and nearby lakes, streams and wetlands that meet specific definitions, the rules, established based upon scientific evidence, prevent the migration of various pollutants into what traditionally would be viewed as navigable waters.

The definition has been tested over time in court.  Prior to 2015, the definition broadly included those upstream waters that “… significantly affect the integrity of waters for which the Federal interest is indisputable.”  The purpose was to preclude activities such as dumping waste into upstream waters that would then pollute waters otherwise within the scope of concern of the Federal Government.

The new rule, adopted in 2020, changed the definition of WOTUS, limiting its application and the jurisdiction of the Federal Government.  In 2021, President Biden issued an Executive Order directing agencies to review regulations to ensure they are consistent with science-based analysis.

A total of five lawsuits have been filed challenging the proposed new rule arguing the rule is too restrictive and complicated.  We will have to await a decision in Sackett.  One of the arguments advance in the challenge to the proposal rule is that it is premature and must await decision in Sackett.

Posted in Clean Water Act, Navigable Waters, WOTUS
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