In December, the Biden Environmental Protection Agency (EPA) published a final “waters of the United States” (WOTUS) rule reverting back to the 2015 definition of navigable waters. 

The agency reports the Clean Water Act will adhere to a “durable definition” of WOTUS to “reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.” 

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a statement. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

But others disagree, including congressional leaders that represent the majority view for private property owners. The Congressional Western Caucus recently submitted a Joint House Resolution that, if approved, would terminate the finalized rule. 

Reverting back to the 2015 rule broadens the definition of jurisdictional waters. As I noted here at IWF in December 2021: 

The Biden administration has called for restoring and recodifying WOTUS to pre-existing Obama administration-era rules, which broadly defined if waters had ‘significant nexus’ to jurisdictional waters.

The Trump-era rule narrowed down and clarified the definition of ‘jurisdictional waters’ by creating four distinct categories including ‘territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters.’

Abuse of this definition by regulators could invite intrusion on private property rights previously seen during the Obama administration. The most famous case was against the late Joe Robertson, a Navy veteran sent to jail for digging ponds on his property that were wrongly deemed to be situated near a “navigable water.” The Obama EPA falsely accused Mr. Robertson of discharging pollutants without a permit. He spent 18 months in jail and was ordered to pay $130,000 in fines. He was posthumously exonerated after his case was vacated by the Ninth Circuit Court of Appeals. 

The EPA website explicitly states the Clean Water Act “establishes the scope of federal jurisdiction under the Act.” Nevertheless, the law doesn’t define what is or isn’t “navigable” water. That authority, in turn, lies with the EPA and the U.S. Army Corps of Engineers. 

The “navigable waters” definition is expected to be challenged in the forthcoming Sackett v. EPA decision later this year to clarify the Clean Water Act’s scope over wetlands.

To learn about WOTUS rules, go HERE.