Is latest WOTUS revision the final chapter?

It is the latest, and may be the final, chapter in the long story of one of the most fought-over policies in U.S. legal history. Lee Zeldin, administrator of the Environmental Protection Agency, posted a notice in the March 11 Federal Register indicating his intention to revise yet again the official definition of “waters of the United States.”

The new definition will replace a Biden-era definition issued in August 2023, in the wake of the U.S. Supreme Court’s decision in Sackett V. EPA in May. The Sackett decision—one of the most important in that year’s Supreme Court’s docket—narrowed the definition of “waters of the U.S.” that come under the protection of the Clean Water Act of 1972.

Sackett overturned and replaced a 2006 ruling in a Supreme Court case, Rapanos v. United States, which was split on a 4-4-1 vote.  Former Justice Anthony Kennedy, breaking the tie, crafted a definition of protected waters that included those with a “significant nexus” or connection to unequivocally protected “navigable waters”—even if that connection was transitory, temporary, or underground.

Taking a cue from Rapanos, the Obama administration issued a 72-page “redefinition” of “waters of the U.S.” that expanded the scope of protection of the Clean Water Act to include wetlands and transitory water features. Critics, including farm groups, charged that the EPA was making new laws without Congress. That definition of “waters of the U.S.” incited immediate litigation from multiple farmers, landowners and businesses.

After the EPA changed its definition of “waters of the U.S.” under Obama, it changed it again under Donald Trump’s first term and changed it back again under Biden. Each change was met with lawsuits that suspended the application of the new definition while litigation proceeded among states, farmers, landowners and environmental groups. Some of these lawsuits were consolidated under various court jurisdictions.

Critics of alleged EPA overreaching were not satisfied with Biden’s last change.
 

U.S. Rep. Tracey Mann (R-Kansas) applauded Zeldin’s announcement of the latest revision, saying, “Nearly two years ago, the Supreme Court made it clear that President Biden’s EPA abused the Clean Water Act to enact regulatory chaos with their definition of WOTUS.”

“America’s farmers, ranchers, and agricultural producers are the original conservationists of the land, and they need a simple, consistent definition of water that gives them certainty as they feed, fuel, and clothe the world. Today’s announcement is a win for Kansas farmers, rural communities, and private landowners. I applaud President Trump and Administrator Zeldin for their relentless efforts to remove handcuffs and protect and defend America’s landowners. When government shrinks, freedom expands.”

Following the Sackett ruling, Mann applauded the Court’s unanimous decision to restrict EPA’s overreach. In August 2023, Mann fired back at the Biden administration’s revised WOTUS rule that removed the “significant nexus” standard for determining whether wetlands or waters are covered by the Clean Water Act. Mann also introduced legislation to establish an advisory committee at the U.S. Department of Agriculture to examine the impact of the WOTUS rule and overreaching regulations on agriculture production and the food supply chain.

David Murray can be reached at journal@hpj.com.