Environmental Protection Agency (EPA) and the Department of the Army (the agencies) have been battling for years over what constitutes a "water of the United States" under the Clean Water Act (CWA) for federal regulatory purposes. The agencies took another pass at defining "waters of the United States" or WOTUS in a rule proposed in December of 2021. 

In this proposed rule the agencies state they are interpreting WOTUS to mean the waters defined by the longstanding 1986 CWA regulations, with amendments to reflect the agencies' interpretation of the statutory limits on the scope of the WOTUS and informed by Supreme Court case law. As many anticipated, this rule seeks to move back toward the "significant nexus" test to determine if a water body or wetland falls within the definition of WOTUS and thus subject to federal regulation.

While comments for the current proposed rule by the agencies are open until February 7, 2022, there may be an unexpected twist or monkey wrench thrown into the ring. On January 24, 2022, the United State Supreme Court granted certiorari to hear the case of Sackett v. EPA. The Court agreed to consider whether the Ninth U.S. Circuit Court of Appeals erred when it affirmed that the federal government has permitting authority over the Sacketts’ property in northern Idaho under the CWA because the property contains "waters of the United States." Since the Sackett case centers on the 2006 ruling in Rapanos v. United States, which resulted in two competing tests for defining WOTUS, the outcome of the Sackett case could very well reset the WOTUS discussion and ultimately restrict the waters the agencies can regulate. This is particularly the case, as it is speculated that the more conservative make-up of the Court indicates that there may be a high chance that the Court will move away from the "significant nexus" test used by the Ninth Circuit and in the agencies current proposed rule. Ultimately, the Sackett case may undermine the agencies' pending proposed rule and reset the WOTUS discussion in an entirely new direction that may allow less regulation by the federal government.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.