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WOTUS Focus on Capitol Hill and in Courtrooms Across the Country
On May 25, 2023, the U.S. Supreme Court issued its landmark decision regarding the definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (CWA) in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).
The Court expressly rejected the “significant nexus” test employed by the Ninth Circuit Court of Appeals and held that the CWA’s use of “waters” refers only to “geographical
features that are described in ordinary parlance as ‘streams, oceans, river, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. “This significantly narrowed the definition of WOTUS utilized by EPA and the U.S. Army Corps of Engineers,” said Norm Semanko (IDAHO), general counsel for the Family Farm Alliance.
Following the Supreme Court’s decision, EPA and the Army Corps issued a final rule, which became effective on September 8, 2023, amending the agencies’ “Revised Definition of ‘Waters of the United States’” to “conform” the regulations to the Sackett decision.
“The Alliance has been tracking the WOTUS ping pong game for the past 16-plus years, as CWA implementation changes with every new occupant in the White House,” said Alliance Executive Director Dan Keppen (OREGON).
The Alliance was also part of an “agriculture” amicus brief in support of the Sacketts that was submitted to the Supreme Court in 2022.
Mr. Semanko and Todd Ungerecht (IDAHO), the Alliance’s policy advisor, have been tracking recent WOTUS litigation and Congressional hearings associated with WOTUS implementation by federal agencies in the post-Sackett era. This Issue Alert! details a recent House of Representatives hearing and summarizes key WOTUS lawsuits.
Congressional Hearing on Feds’ Post-Sackett WOTUS Implementation
Ungerecht reports that the U.S. House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and Environment on September 11 heard testimony raising concerns regarding the Biden Administration’s implementation of the WOTUS regulations and guidance, following the U.S. Supreme Court’s ruling in Sackett v. EPA.
In his opening statement, Chairman David Rouzer (R-NC) noted the lack of transparency and consistency in federal implementation of regulations following the Sackett ruling.
“The Clean Water Act was never envisioned for the federal government to have control over every ditch and mud puddle,” the chairman noted. “The Supreme Court’s ruling in Sackett v. EPA last year provided a decisive win for America’s farmers, small businesses, and
property owners. Yet, despite the Court’s clarity, there remains a distinct incongruence in the ruling and the latest definition of the WOTUS from this Administration, which has led to a new round of legal challenges and additional confusion.”
Chairman Rouzer introduced into the record letters from a variety of mining, contractors, and 24 states’ attorney generals, requesting a federal court to vacate the EPA and Army Corps’ post-Sackett amended WOTUS rule, stating the rule violated the Administrative Procedures Act and does not properly follow the Supreme Court ruling.
The hearing featured testimony from states and stakeholders representing agriculture and home builders, each of whom raised concerns about the lack of transparency and lack of guidance on the Army Corps’ and EPA’s interpretation and implementation of the Supreme Court’s ruling, their revised rule and field guidance, and the resulting delays, costs, and uncertainty to stakeholders.
Emma Pokon, representing the State of Alaska’s Department of Environmental Conservation testified that states are better situated to make judgment calls about the level of regulatory protection most appropriate for each state’s citizens, but that federal agencies aren’t deferential to states.
“Federal agencies are reluctant to trust states; instead, they continue to grope for complete authority over all waters,” she stated.
Post-Sackett, Pokon noted, “nothing has changed,” with regard to federal implementation, and that the federal agencies aren’t clear about whether they are looking for surface water or looking to flow of water to indicate connectivity of water between wetlands and federal jurisdictional water.
Courtney Briggs, Chairman of the Waters Advocacy Coalition (WAC) of the American Farm Bureau, testified that the federal agencies’ failure to clarify the meaning of “relatively
permanent” and “continuous surface connection,”—two crucial terms for defining the scope of federal jurisdiction—put farmers and rural businesses at risk of being held criminally liable for honest mistakes, facing as much as $64,000 per day for every day of noncompliance or jail time.
“To put it simply, WAC members are tired of playing agencies’ never-ending guessing games,” she said.
Ms. Briggs further pointed out the agencies’ development of “secret” rule implementation guidance with strict instructions they do not share it publicly. Her membership, through Freedom of Information Act (FOIA) requests, obtained 1,123 pages of documents that the agencies heavily redacted stating the text was “deliberative.”
“The agencies implementation improv is a flagrant abuse of power and a blatant disregard for public transparency,” she said. “They are relying on memos haphazardly placed on websites without public notice, each giving a small snippet on how they’re implementing this rule, thus leaving stakeholders to play “connect-the-dots” with their livelihoods on the line.”
In response to a question from Congressman Doug LaMalfa (R-CALIFORNIA) as to the ability of California farmers to operate with CWA exemptions, Briggs responded, “the ag exemptions are only as good as how well they’re written. There’s always an asterisk associated with ag exemptions”—they can be taken away any time the federal agencies deem appropriate.”
Congressman John Duarte (R-CALIFORNIA) noted the status of Army Corps’ slow pace of permit processing and that they are not even doing delineation verification mapping of wetlands.
Ms. Briggs responded that according to many of her members, issuance of “approved jurisdictional determinations (“AJDs”) are not happening,” and that the Army Corps is often prioritizing AJDs that are connected to a permit.
“What this is effectively doing is pushing landowners into PJD’s,” conceding everything is under federal CWA jurisdiction, she said.
A PJD is “preliminary” in the sense that a recipient of a PJD can later request and obtain an AJD if that becomes necessary or appropriate during the permit process or during the administrative appeal process.
Nicole Rowan, director of the Colorado Water Quality Control Division, offered the perspective of the first state enact stiffer wetlands protections in response to Sackett. While the program has the support from industry groups and the conservation community, it has not been inexpensive.
“We had to put state dollars together to fund this program and be able to issue timely permits in the ways that our regulated community deserves and desire,” Ms. Rowan said. “We’ve been really focused on filling the gap that Sackett left behind.”
Vince Messerly, on behalf of the National Association of Home Builders, testified that the federal agencies’ WOTUS implementation is also driving up the costs to build homes, and that the delays and costs for permits were extraordinarily expensive.
“A basic permit is $70,000 for mitigation, consulting fees, attorneys’ fees, easily puts it over $100,000 for just a general permit,” he testified.
WOTUS Litigation Update
The Biden Administration’s revised WOTUS implementation rule was immediately met with several legal challenges, which claimed that the new rule falls short of complying with the Supreme Court’s ruling. Other post-Sackett lawsuits have involved as-applied challenges, questioning EPA’s authority over certain wetlands.
Here is a summary of some of the key cases, prepared by Norm Semanko.
Texas and Idaho v. EPA, U.S. Dist. Ct. for the S. Dist. of Texas
Texas and Idaho have filed a motion for summary judgment, seeking to have the Amended WOTUS Rule struck down as inconsistent with the Court’s holding in Sackett. They
specifically pointed to the rule’s failure to define key terms from the Court’s holding and its omission of the “indistinguishable” requirement. They also argued that the rule is due no deference following the Supreme Court’s ruling in Loper Bright v. Raimondo, 603 U.S. ___ (2024), which did away with the long-standing Chevron deference standard previously applied to agency interpretations of ambiguous statutes.
West Virginia et al. (24 states) v. EPA, U.S. Dist. Ct. for the Dist. of North Dakota
Similar arguments against the Amended WOTUS Rule have been made by 24 states in this case.
Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023)
The Court of Appeals found that Sackett requires a wetland to be indistinguishable from a WOTUS to be jurisdictional. Because there was no evidence of such a connection, the federal government’s claims against Lewis were dismissed, even though the District Court had found in favor of the U.S. on summary judgment, pre-Sackett.
Glyn Envtl. Coal., Inc. v. Sea Island Acquisition, LLC, U.S. Dist. Ct. for the S. Dist. of Georgia (2024) 
The District Court recognized that a wetland must be “practically indistinguishable” from a WOTUS and ruled that the amended complaint must be dismissed because it failed to plausibly allege that such facts existed. This decision is on appeal to the Eleventh Circuit Court of Appeals.
White v. EPA, U.S. Dist. Ct. for the E. Dist. of North Carolina (2024)
U.S. District Court Judge Boyle denied White’s Motion for Preliminary Injunction, concluding that he was unlikely to succeed on the merits of his claims. In doing so, the judge minimized the importance of the word “indistinguishable” in the Sackett decision, claiming that it was enough for there to be a continuous surface connection between the wetlands and the WOTUS. This case is on appeal to the Fifth Circuit Court of Appeals.
EPA v. Ace Black Ranches, U.S. Dist. Ct. for the Dist. of Idaho (2024)
Chief U.S. District Court Judge Nye granted Ace Black Ranches’ Motion to Dismiss the claims of the United States for failure to allege facts demonstrating a continuous surface connection between wetlands and the river. EPA was granted 30 days to amend its complaint.
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