WLF Advises EPA, Army Corps of Engineers Against Muddying Up “Waters of the United States” Definition

“When it comes to faithfully applying the Supreme Court’s decision in Sackett v. EPA, the agencies can’t just swim with the Court’s current only part of the way.”
—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s comment.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to update the Clean Water Act’s (CWA) definition of “waters of the United States” by hewing closely to the U.S. Supreme Court’s decision in Sackett v. EPA.

In Sackett, the Supreme Court clarified a longstanding ambiguity about the scope of the CWA, verifying that the law applies to only those bodies of water “that are as a practical matter indistinguishable from” lakes and rivers. The EPA and Corps have proposed a new rule that largely conforms with Sackett. As WLF’s comments note, adopting the agencies’ proposal would be an improvement over the status quo.

But WLF flagged two issues for the agencies to consider. First, the definition of “relatively permanent” waters should be limited to perennial waters that a person can, via direct observation, determine are jurisdictional without recourse to hydrological or legal professionals. Second, the definition should not anchor federal jurisdiction to a loosely defined “wet season.” That can’t be squared with Sackett, as it would mean that land that is dry for months at a time could still be regulated as a “water of the United States”—defying the Court’s instruction that the CWA is limited to bodies of water “indistinguishable” from plainly permanent ones.