“Water, water, everywhere,
Nor any drop to drink.”
Many are familiar with these famous lines from Samuel Taylor Coleridge’s 18th century English poem, The Rime of the Ancient Mariner. In a modern sense, many may have felt that “water” truly was “everywhere” based on prior administrations’ expansive reading and application of the scope of waters subject to federal Clean Water Act (CWA) regulations.
Now under the Trump administration, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have recently released their proposed rule regarding the ever-moving definition of “waters of the United States” (WOTUS). The sixth proposed change to the WOTUS definition in the past decade, this proposed rule attempts to align with the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which substantially narrowed the scope of WOTUS – a relief for landowners and those in production agriculture nationwide.
WOTUS
“Waters of the United States” is a key term in the CWA that establishes the geographic scope of federal jurisdiction under the CWA. Unfortunately (and somewhat ironically), the CWA does not define the term WOTUS; therefore, since the 1970s the term has been defined by the EPA and the Corps. Considering the impact of federal oversight (or jurisdiction) on what property owners can or cannot do with their property depending on whether there could be a link to some water source on their property, the expanse of the definition has been a source of conflict for almost half a century.
Sackett v. EPA
The pivotal 2023 Sackett opinion and its underlying facts provide a good overview on regulation and the conflict between federal regulation and rights of landowners. The Sacketts bought property near Priest Lake, Idaho, in 2004 and later backfilled the lot with dirt in preparation for building a house. A few months later, the EPA notified the Sacketts that their property contained wetlands and ordered the couple to restore the site or face penalties of up to $40,000 a day. The “wetlands” at issue on the Sackett property were separated by a 30-foot road from an unnamed tributary that fed into a non-navigable creek that then fed into Priest Lake, a navigable but wholly intrastate water body. The Sacketts challenged the order, claiming that the “wetlands” on their property were not jurisdictional “waters of the United States.” Nearly two decades of litigation followed.
In its opinion, the Supreme Court significantly narrowed the scope of WOTUS, holding that federal jurisdiction over waterbodies includes only “relatively permanent, standing or continuously flowing bodies of water” and wetlands “that have a continuous surface connection” to those waters. Specifically, the court rejected the use of the “significant nexus” test (which had been formulated in 2006 by Justice Kennedy in the Rapanos v. United States case), to reach wetlands purportedly “adjacent to,” even though separated by a road from, the Sacketts' property. In Sackett, the court unanimously agreed that the EPA’s definition was overbroad, and concluded that Section 404 of the Clean Water Act (regulating the discharge of dredged or fill material into WOTUS) covers “only wetlands that are as a practical matter indistinguishable from waters of the United States.”
Post-Sackett efforts
While the Sackett case was still pending at the Supreme Court, the EPA and Corps, under the Biden administration, issued their final “Revised Definition of ‘Waters of the United States’ Rule” in January 2023. The January 2023 rule was quickly challenged by multiple states and it is currently enjoined in 26 states: Idaho, Texas, Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.
Following the Sackett decision, the agencies revised their regulations to modify the definition of WOTUS in an apparent effort to conform to the Supreme Court’s interpretation (the Revised Definition). However, the revised rule still arguably conflicted with portions of the Sackett opinion and was challenged. The rule remains enjoined in the above 26 states. In those jurisdictions, the EPA currently uses the pre-2015 regulatory regime consistent with Sackett. In the other 24 states, the District of Columbia and U.S. territories, the Sept. 8, 2023, Revised Definition is being implemented.
The recent proposal by EPA and the Corps is an effort to end the split implementation of the Sackett decision and more “adequately comply” with the Sackett decision’s interpretation of the scope of federal jurisdiction under the CWA. The proposed rule (which can be accessed here) is intended to improve the effect of the CWA’s goal to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters” while recognizing and protecting “the primary responsibilities and rights of States to prevent, reduce and eliminate pollution’ and ‘to plan the development and use … of land and water resources.’” Among other provisions, some of the most significant proposed changes include the following:
- Adds an explicit groundwater exclusion, codifying the historic understanding that groundwater is not WOTUS.
- Clarifies that ditches constructed or excavated entirely in dry land are not WOTUS, even if they have a relatively permanent flow and connect to jurisdictional waters.
- Clarifies that “waste treatment systems” no longer include “treatment ponds or lagoons.”
- Clarifies that ephemeral waters (ones that have flowing water only during, and for a short duration after, precipitation events) are not jurisdictional because they are not relatively permanent.
The rule will be open for public comment until Jan. 5, 2026, so stay tuned to see what the agencies do in early 2026 in response to any comments.
