What You Need To Know About The New EPA Clean Water Act Rule

The Environmental Protection Agency (EPA) recently announced the Clean Water Act Rule, a new approach that impacts America’s waterways. This regulation establishes a baseline for all future clean water initiatives, ensuring that these bodies of water are given the same level of protection as those that are larger and more well-known.

With these recent decisions, many Americans are concerned about the potential impacts of government overreach on our lakes and waterways. The new rule seeks to extend federal authority and oversight to all bodies of water in the United States, including those that have previously been untouched by federal regulation. It is important that citizens understand both its implications and potential benefits so they can make an informed decision regarding the proposed rule. In this article, we’ll discuss what you need to know about the Clean Water Act Rule and how it could affect our environment and our everyday lives.

What is the USACE Clean Water Rule?

The United States Army Corps of Engineers (USACE) is the enforcement agency of the EPA’s decisions. Neither the EPA nor the USACE make “rules”. The U.S. Congress and the President make the rules in reaction to the unclear statutes that define EPA authority over Waters Of The United States (WOTUS), in order to make clear the numerous lawsuits filed against the EPA that have ended up in the Supreme Court Of The United States (SCOTUS) and other lower courts and their rulings since the Clean Water Act (CWA) was signed into law in 1972. 

What is the EPA Clean Water Act Rule?

There is the Clean Water Act, and then there are the “rules” as defined in the above section. There is no Clean Water Act Rule, but there are numerous “Clean Water Rules”, or “rules” associated with the CWA. The U.S. President and Congress have been creating “rules” in response to SCOTUS rulings for decades. Three significant “rules” concerning WOTUS since 2015 that appear to be in reaction to SCOTUS EPA rulings have been created, or vice versa. 

The 2015 Clean Water Rule was repealed by the 2019 Rule, which reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance. Agencies replaced the 2019 Rule with the Navigable Waters Protection Rule (NWPR) in 2020. The EPA’s authority has proved that change is the only constant in its jurisdiction since President Richard M. Nixon was forced to establish the agency on December 2, 1970.

Thousands of individuals, businesses, and entities have filed lawsuits against the EPA since its establishment. SCOTUS heard and ruled on many of those cases. A number of factors, particularly presidential administration, the passage of new regulations or amendments to laws, or the EPA’s failure to meet statutory deadlines, affect the number of environmental litigation cases each year and the type of plaintiffs who bring them.

For example, from fiscal year 1995 through fiscal year 2010 the EPA defended itself in various courts through nearly 2,500 cases. That averages out to 600 lawsuits filed against the EPA per year for 15 years. This amounts to trillions of dollars paid by the Department of Treasury for attorney’s fees and settlements on behalf of the EPA. It would take eons of time to go to the United States Government Accountability Office to find out the total bill from 1972 to 2022. 

What Waters Are Protected Under the Clean Water Act?

The honest truth is, we do not know. The EPA, its statutes, its authority, and its jurisdiction are constantly changing due to lawsuits, presidential administrations, congressional terms, decisions handed down by the SCOTUS, various federal appeals courts, and other courts. 

In 2023, this is how the EPA defines WOTUS under the CWA:

The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)). Many Clean Water Act programs apply only to “waters of the United States.” The Clean Water Act provides authority for EPA and the U.S. Department of the Army (Army) to define “waters of the United States” in regulations. 

So, we have to look at the “rules”. As noted above, the “rule” in effect in 2023 is the Navigable Waters Protection Rule (NWPR), the latest “rule”, but this “rule” is subject to change. The NWPR defines WOTUS is as of June 9, 2021, until further notice, consistent with the pre-2015 regulatory regime.” And this does not answer the question of what is WOTUS, because of the cases tied up in Timeline section of this article. 

There is no defined definition of WOTUS because EPA is in the process of drafting new regulations to replace the pre-2015 regulatory regime. Until that point, unless something changes, EPA and the USACE will likely continue to interpret WOTUS according to the pre-2015 regime. In the NWPR, there are several definitions of WOTUS. The most significant definitions of WOTUS are these three definitions cited in the NWPR:

1. According to the plurality, the word “waters” in “waters of the United States” should be taken to mean only “relatively permanent, standing or continuously flowing bodies of water” such as stream, oceans, rivers, and lakes. This would exclude any water body through which water flows only intermittently or ephemerally, and would only include wetlands if the wetland had a “continuous surface connection” to another WOTUS.
2. According to Justice Kennedy, the CWA required a more flexible approach. He suggested that the jurisdiction of each water should be determined on a case-by-case basis, and that jurisdiction should be based on whether the water in question has a “significant nexus” to a water body that has been used for interstate commerce. For wetlands, a significant nexus would exist if the wetlands “significantly affect the chemical, physical, and biological integrity” of another WOTUS. In that case, the wetland would be considered a WOTUS and would fall under the jurisdiction of the CWA.
3. Of the waters that the agencies would continue to assert CWA jurisdiction over, EPA included traditionally navigable waters, wetlands adjacent to those waters, non-navigable tributaries of traditionally navigable waters that are relatively permanent, and wetlands that directly abut those tributaries. As always, EPA defined traditionally navigable waters as “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce.” In other words, those water bodies that could be use to ship goods or otherwise facilitate interstate commerce remained clearly jurisdictional under the CWA. EPA would also continue to assert CWA jurisdiction over wetlands that were “bordering, contiguous, or neighboring” traditionally navigable waters. Such wetlands do not need to have a continuous surface connection with a navigable water. While a continuous surface connection with a navigable water is enough to bring a wetland under CWA jurisdiction, wetlands that are physically separated from jurisdictional waters by man-made barriers, natural river berms, or beach dues would also fall under CWA jurisdiction. So would wetlands that share a scientifically-supported ecological connection with a jurisdictional water. EPA also continued to find that non-navigable water bodies whose waters flow into a traditionally navigable water either directly or indirectly were clearly jurisdictional, as were the wetlands that shared a continuous surface connection with those non-navigable waters.

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The Story Takes Place on Priest Lake, Idaho

Michael and Chantall Sackett bought a residential lot near Priest Lake, Idaho, in 2004, and wanted to build their home on it. The Sacketts did not know that their lot included wetlands the EPA had determined were protected by the Clean Water Act, according to testimony heard by the U.S. Supreme Court (SCOTUS) October 3, 2022. The Sacketts laid 1,700 cubic yards of sand and gravel on their lot. A manmade ditch takes part in this saga. The ditch in question is and is not a separate animal. 

Shortly after, the Environmental Protection Agency (EPA) informed the Sacketts they could not build on their lot because construction on the land violated the Clean Water Act (CWA). This is because the EPA determined their lot contained wetlands that qualify as “navigable waters” regulated by the CWA and the Sacketts had failed to obtain a Clean Water Act permit from the United States Army Corps of Engineers (USACE). 

The USACE is the enforcement agency of the EPA. The EPA informed the Sacketts that filling wetlands which qualify as “navigable waters” with sand and gravel violated the CWA, and they needed to remove the sand and gravel and restore the property to its natural state. The EPA halted any more developments to the Sacketts’ lot. In 2007, the Sacketts sued the EPA.

In 2008, the case ended up in the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit applied Supreme Court Justice Kennedy’s “significant nexus” test from Rapanos v. United States, 2006, to the Sacketts’ property. This is where the case begins its journey that will continue until the summer of 2023, when the SCOTUS will rule on limited questions. 

The hope is that this 2023 ruling will clear up EPA statutes, however, that is doubtful, as this case is about EPA jurisdiction over wetlands, and not the whole of “Waters of the U.S.” (WOTUS). The Sacketts’ lot sits behind a row of houses on lakefront property and right next to a few houses on wooded property at Priest Lake in Idaho. 

There is no surface water between the Sacketts’ lot and the roadside ditch or between their lot and Priest Lake. The manmade ditch spills about a half mile downstream into Kalispell Creek, which spills another thousand feet from that point into Priest Lake. The question during the 2022 SCOTUS hearing from Justice Alito:

October 3, 2022: “JUSTICE ALITO: “And how does the water from the Sacketts’ property get to the [manmade/roadside] ditch?” MR. SCHIFF: “The short answer, Justice Alito, is that the water doesn’t get to the ditch. It doesn’t get to the wetlands. It doesn’t get to Priest Lake. There is no surface connection from the Sacketts’ property to any plausible water.” (1)

Timeline of Proceedings 

2009: The Ninth Circuit hears oral argument in the Sacketts’ case.

2010:  The Ninth Circuit affirms the District Court and denies the Sacketts any recourse to challenge the EPA’s assertion of authority over their lot.

2011: The Sacketts file a petition for a writ of certiorari, asking the Supreme Court to hear their case.

The Supreme Court grants certiorari and agrees to hear the Sacketts’ case limited to the following questions: 

1. “May the petitioners [Sacketts] seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act? (APA) 
2. If not, does petitioners’ [the Sacketts’] inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?”

For the first time, Sackett v. EPA goes to SCOTUS in 2012. In effect, the first SCOTUS hearing of the case was about the Sacketts’ right to sue the EPA. 

2012: The Supreme Court hears oral arguments in Sackett v. EPA.

In a unanimous opinion authored by Justice Scalia, the Supreme Court held that the Sacketts can challenge the EPA’s compliance order in court because it is “final agency action” under the EPA and thus subject to judicial review. The Court reverses the Ninth Circuit and remands the case to the lower courts for further proceedings to be consistent with its opinion.

Fall 2012 through Early 2015: Numerous procedural delays follow remand from the Supreme Court.

The Sacketts and the EPA litigate various procedural issues at the District Court, including litigation over the case’s record.

Fall 2015 Through Winter 2017: The Sacketts and the EPA litigate the merits in the United States [Ninth] District Court for the District of Idaho to determine whether the Sacketts’ property contains wetlands that qualify as “navigable waters” subject to the EPA’s authority under the Clean Water Act.

The Sacketts originally argue that the EPA lacks jurisdiction over their homebuilding project under Justice Kennedy’s significant nexus test from Rapanos v. United States,2006.  

The Ninth Circuit decides United States v. Davis, which analyzed how to apply fractured decisions like Rapanos. (2019: SCOTUS rules in United States v. Davis the residual clause was unconstitutionally vague)

The Sacketts argue that Justice Scalia’s plurality opinion is the controlling rule of law. Under this test, wetlands are regulable only if they have a continuous surface water connection to other regulated waters. The Sacketts argue that because their lot lacks this connection, the EPA lacks authority over their site.

Winter 2017–Winter 2019: The [Ninth] District Court considers the Sacketts’ case.

March 2019: The [Ninth] District Court rules that the EPA has authority to regulate the wetlands alleged to exist on the Sacketts’ lot pursuant to Justice Kennedy’s “significant nexus” test from Rapanos, under which wetlands are regulable if they, either alone or in combination with other “similarly situated” wetlands in the “region,” significantly affect the physical, chemical, or biological integrity of a traditional navigable water.

May 2019: The Sacketts appeal the District Court’s ruling. 

December 2019: The Sacketts argue that the EPA lacks jurisdiction under the CWA over their homebuilding project. 

The Sacketts argue that the Rapanos plurality and that the District Court was in error by applying Justice Kennedy’s “significant nexus” test to determine the scope of the EPA’s regulatory authority over their lot.

2020: March: the EPA withdraws their administrative compliance order and makes a non-binding commitment to refrain from issuing another order. 

The EPA still asserts that it has the authority to regulate the Sacketts’ property under the CWA.

April: The EPA moves to dismiss the Sacketts’ appeal at the Ninth Circuit, 

The case is moot because the EPA rescinded its administrative compliance order.

May: A motions panel denies the EPA’s motion to dismiss the case as moot without prejudice. (A case dismissed with prejudice is over and done with, once and for all, and can not be brought back to court. A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.)

August: A merits panel rejects the EPA’s claim that its voluntary withdrawal of the administrative compliance order moots the case.

1. The Sacketts’ appeal remains live despite the EPA’s voluntary, non-binding commitment. 
2. Because the Sacketts’ “central legal challenge” to the EPA’s jurisdiction remains “unresolved.”

November: The Sacketts’ case is argued at the Ninth Circuit.

2021: August: The Ninth Circuit affirms that Justice Kennedy’s significant nexus test controls questions of wetlands jurisdiction. 

The court affirms the EPA’s jurisdiction over the Sacketts’ lot.

Because 

1. The property contains, within the meaning of EPA’s regulations, “wetlands” that are “adjacent” to a “tributary” of Priest Lake (namely, the roadside ditch) 
2. The lot’s purported wetland, in combination with wetlands on the other side of a road, bear a significant nexus to Priest Lake.

September: The Sacketts file a petition for a writ of certiorari, asking the Supreme Court to decide the proper test for wetlands jurisdiction under the CWA and whether the Sacketts’ lot is regulable under the CWA.

2022: January: The Supreme Court grants certiorari and agrees to hear the Sacketts’ case limited to the following question: “Whether 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. § 1362(7).”

March: The Sacketts submit brief at the Supreme Court: 

Offering a framework for determining when a wetland is among “the waters of the United States” subject to the CWA’s regulation of “navigable waters”. The Sacketts argue that this framework, is constitutionally sound, faithful to the statutory text of the CWA, and easily applied:

1. Is the wetland inseparably bound up with a “water”. i.e., a stream, ocean, river, lake, by means of a continuous surface-water connection, such that it is difficult to tell where the wetland ends and the “water” begins?
2. Is the “water” among “the waters of the United States,” i.e., those water bodies subject to Congress’s authority over the channels of interstate commerce? (2)

The Ninth Circuit’s decision is questioned whether the Ninth Circuit set forth the proper test for determining whether wetlands are “Waters of the United States” under the Clean Water Act, which is Supreme Court Justice Anthony Kennedy’s significant nexus test. 

What is a Significant Nexus Test?

A significant nexus analysis will assess the flow characteristics and functions of the relevant reach of the tributary, in combination with functions collectively performed by all wetlands adjacent to the tributary, to determine if they have more than an insubstantial or speculative effect on the chemical, physical, or biological integrity of TNWs.

October 3, 2022: Year 16: the Sacketts v. EPA

On October 3, 2022, the SCOTUS heard oral arguments the second time from petitioner, the Sacketts, and the respondent, the EPA. Damien M. Schiff, of Pacific Legal Foundation, represents the Sacketts. Brian H. Fletcher, Acting Solicitor General, represents the EPA. 

After hearing Mr. Schiff’s final rebuttal argument, Chief Justice Roberts replied, “Thank you, counsel. The case is submitted. (Whereupon, at 11:52 a.m., the case was submitted.)” SCOTUS opened its 2022/2023 term on October 3, 2022, and will release the majority of its decisions mid-June 2023. Now, environmentalists, waterfront property owners, and the oil and mining industries across the U.S. are on pins and needles waiting a SCOTUS’ decision on Sackett v. EPA until summer 2023. 

What Does This Legal Mumbo Jumbo Mean?

The second SCOTUS Sackett v. EPA hearing presents a huge environmental quandary according to various entities. The outcome of SCOTUS’ decision is expected to affect wetlands across the U.S. At the crux of this litigation are the definitions of a wetland in “navigable waters” under the jurisdiction of the EPA, what is an abutment in relationship to private land to the EPA protected wetlands, if the “significant nexus” test was the appropriate measure of CWA jurisdiction, and the definition of the (WOTUS).  

Simply put, the 2023 SCOTUS decision will determine whether or what wetlands fall under the jurisdiction of the CWA, and what are the WOTUS. President Lyndon B. Johnson signed the Clean Waters Restoration Act into law in 1966. President Richard M. Nixon vetoed the CWA on October 17, 1972, after it had passed both houses of Congress. The houses overrode Nixon’s veto the next morning, and the CWA became law October 18, 1972. 

This case has bitterly pitted environmentalists against private landowners and business owners near any WOTUS, plus the mining and oil industries across the U.S. Environmentalists are screaming that the sky is falling and power will be stripped from the EPA’s CWA, which will devastate wildlife across the U.S. Conservative legal minds are less emotional and leaning towards the opinion that SCOTUS will not strip the EPA of its authority to regulate wetlands until Congress revisits the issue, which will only lead to more ineffective “rules”.

Rules

In the meantime, throughout the history of the EPA, Presidential administrations and Congressional sessions have implemented various “rules” since 1972 concerning EPA jurisdiction and the questionable clarity of definitions of its authority across its gamut of statutes. 

The most recent rules in Sackett v. EPA have occurred under the Obama and Trump administrations, and SCOTUS’ decision to hear the case again has thrown the Biden administration into a tizzy. So many entities want these definitions need to be defined clearly, so there is no question, the endless rules can come to a close, and party politics can quit creating “rules” to define the EPA. 

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Conclusion

After a decision from the federal district court in Arizona on August 30, 2021, it appears that the NWPR will no longer be used to determine whether a water body is a WOTUS. Instead, EPA and the USACE will revert to the regulatory regime that was in place prior to 2015, which consists of the 1980s regulations and some key memoranda. Under that regime, some waters should be readily identifiable as the WOTUS, while others will require additional analysis. Traditionally navigable waters, such as the Mississippi River, will fall under CWA jurisdiction. 

Additionally, any non-navigable tributaries of navigable waters, and any wetlands that abut those tributaries or share a “significant nexus” with a navigable water will also be jurisdictional. From there, it gets less clear. Other waters will require EPA or the USACE to perform an analysis to examine the flow characteristics and functions of the water to determine whether it is a WOTUS. Barely any of the “rules” or the EPA statutes and vague definitions make sense to many people on both sides of the argument. 

Sources

1. In The Supreme Court Of The United States Michael Sackett, Et Ux., ) Petitioners, ) V. ) No. 21-454 Environmental Protection Agency, ) Et Al., ) Respondents. Pages: 35 Place: Washington, D.C. Date: October 3, 2022, from https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-454_g31h.pdf
2. GILLIARD, P. (2022, August 2). Sackett v. EPA: A timeline. Pacific Legal Foundation. Retrieved February 1, 2023, from https://pacificlegal.org/sackett-v-epa-timeline/
3. Rollins, B. (2015, September 21). Wotus Update: Breaking Down the Pre-2015 Regulatory Regime. Retrieved February 17, 2023, from https://nationalaglawcenter.org/wotus-update-breaking-down-the-pre-2015-regulatory-regime/#:~:text=Of%20the%20waters%20that%20the,that%20directly%20abut%20those%20tributaries