BY STAFF REPORTS
U.S. Environmental Protection Agency (EPA) leaders on Wednesday announced it is going to redefine the Waters of the United States (WOTUS) to align with the 2023 Sackett v. EPA decision, which defines wetlands protections under the Clean Water Act (CWA).
“We want clean water for all Americans supported by clear and consistent rules for all states, farmers, and small businesses,” EPA Administrator Lee Zeldin said in a news release issued Wednesday. “The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business. Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback.”
In a memorandum issued Wednesday, the EPA, and U.S. Army Corps of Engineers noted that Sackett provided a two-part test for determining CWA jurisdiction over adjacent wetlands. One, an adjacent body of water must be a “water of the United States,” meaning permanent and connected to a traditional navigable water. Second, a wetland must have a continuous surface connection to a requisite covered water, making it difficult to determine where the water ends and the wetland begins. The memo gives a history on Sackett and a preceding case, Rapanos v. United States.
It also notes that the EPA guidance in recent years has not been helpful to landowners affected by the court ruling and subsequent federal rule filings. It describes two 2023 rule filings as not including, “adequate direction or guidance on the meaning of the “continuous surface connection” requirement, and the agencies’ case-specific policy memoranda issued post-Sackett neither provided national guidance on the topic nor clear and transparent direction for the public or the agencies.”
The memo Wednesday noted that the agencies will be filing a Federal Register notice called “WOTUS Notice: The Final Response to SCOTUS” intended to outline a process to gather recommendations on the meaning of key terms in Sackett, provide stakeholder engagement opportunities and identify areas of implementation challenges.
“This guidance represents the agencies’ views on the proper implementation “waters of the United States” and is effective immediately,” the memo states. “The EPA will apply this guidance when determining if a wetland has a “continuous requisite jurisdictional water under the Clean Water Act.”
For decades, officials in Washington D.C. have attempted to create definitions of WOTUS, which are continuously challenged in court. The country now has a patchwork of regulations, with 23 states operating under the “2023 Rule,” which took effect in March 2023, and 27 states – including Florida – operating under a pre-2015 regulatory framework.
That’s partly because in May 2023, the U.S. Supreme Court ruled in Sackett v. EPA that federal agency jurisdiction “extends only to the limits of Congress’ traditional jurisdiction over navigable waters.” The simplified WOTUS definition in Sackett includes only: traditional, navigable waters such as “streams, oceans, rivers, and lakes” and wetlands when they are continuously connected to, and indistinguishable from, navigable waters.
