By: Sarah Falen
It is no secret that Congress writes their laws so broadly that you could drive a Mac Truck through them. It is also no secret that the U.S. Constitution allows Congress to delegate some of their authority to federal agencies to write regulations in order to implement these over-broad laws.
Following and implementing the Clean Water Act (CWA) has not been an exception to this. Thankfully, the Supreme Court of the United States (SCOTUS) has finally reeled back some of the regulatory authority that the Environmental Protection Agency (EPA) had claimed to regulate private property.
Generally, water is owned by the states. However, under the CWA, passed in 1972, the Federal government, through the EPA was delegated authority to regulate “waters of the US.” (WOTUS) from the introduction of pollutants. Historically, this meant “traditional navigable waters” or waters that you could use to transport commerce from state to state. Over time and based on the position of the President at the time, there came to be significant debate in how the EPA and the courts defined a WOTUS. Because water is fluid and can be connected through smaller streams or even ground water, during some Presidential administrations, the EPA expanded the definition of “WOTUS” to include water that was not only navigable but may be adjacent to a navigable water or could be connected to a navigable water by an above-or underground smaller stream that might reach a puddle that held water only three days of the year. For private property owners, this meant that even a low area in your field could be a WOTUS, requiring you to get a federal permit if you disturbed that land.
The WOTUS definition got worse in 2006 after SCOTUS heard the Rapanos case. In that case, four Justices concluded that the CWA’s coverage did not extend beyond (1) waters connected to traditional navigable waters and (2) wetlands with such a close physical connection to a traditional navigable water, that they were “practically indistinguishable” from a WOTUS. In contrast, four Justices determined that the definition of “WOTUS” should be solely left to federal agency discretion. The last Justice concluded that jurisdiction under the CWA requires a “significant nexus” between wetlands and navigable waters.
The Rapanos decision resulted in the EPA, under each administration, having the ability to determine what that “significant nexus” was for purposes of federal jurisdiction over private property. This was a disaster as you can imagine the policy swings from the Obama to the Trump to the Biden Administrations were rather large, leaving the public with a policy driven whiplash, never knowing if they needed an EPA permit on their private property or not. The failure to get the required permit could result in fines of $60,000 each day for what may or may not be a violation depending on the President in office.
The SCOTUS, with its 2023 decision in Sackett, has hopefully ended the whiplash stating a definitive definition of a WOTUS. That opinion states that CWA’s jurisdiction only extends to those waters and wetlands that have a “continuous surface connection to bodies that are WOTUS in their own right.” In other words, the EPA can only regulate traditional navigable water, and waters that are so closely connected to those navigable waters, that they are indistinguishable on their own.
Hopefully this clear pronouncement will clear up the “muddied mess” of when a private landowner needs a federal permit on his private property. The EPA will still have the ability to write regulations regarding the implementation of the CWA, but this is the definition they have to use. Thankfully this is one instance where SCOTUS has reeled back in some of the EPA’s authority to regulate water and has made following the CWA less of a moving target.