The Environmental Protection Agency released its latest Waters of the United States rule (WOTUS) earlier this week following the Supreme Court’s May ruling in the Sackett v. EPA case which overturned portions of President Biden’s controversial rule.

 

The Clean Water Act of 1972 authorizes EPA to regulate the nation’s navigable waterways. Under the previous WOTUS rule issued by President Biden at the end of 2022, that included bodies of water with a “significant nexus” to navigable waterways. The Supreme Court ruled that definition was too broad, insisting EPA could only regulate bodies of water with a direct connection to navigable waters.  The new EPA guidelines remove the significant nexus test from being considered when determining which waters are federally protected. It also clarifies interstate wetlands do not automatically qualify as interstate waters subject to the Clean Water Act. Language regarding federally protected “additional waters” has also been revised to comply with the high court.  

 

The Supreme Court case in particular dealt with the Sackett family in Priest Lake, Idaho, who were told by the EPA and Army Corps of Engineers officials 16 years ago that their residential lot was on a protected wetland and hence they could not build a residence there. They were threatened with daily fines unless they applied for a federal permit. Instead, the Sacketts sued the government. A previous decision by the 9th U.S. Circuit Court of Appeals ruled in favor of the government, but the Supreme Court’s 2023 spring decision reverses the lower court, and unanimously ruled that “The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.” The court was split 5-4 on the court’s new “test,” which stated that only wetlands with a continuous surface connection to a body of water are covered by the law.

 

NAAA was part of an effort to prevent the administration from developing its WOTUS definition until after the Supreme Court’s decision on the Sackett case. The updated definition by EPA released this week following the Supreme Court’s spring decision will mitigate the area of waters that require NPDES pesticide general permits under the CWA—a duplicative and unnecessary regulation due to FIFRA rules and regulations already testing for the safety of pesticides to water and many other environmental criteria before being approved for use.