On August 29 EPA issued a revised final rule updating their definition of “waters of the United States” (WOTUS). The revision was made in response to the Supreme Court’s May decision in the case of Sackett vs. EPA, which held that the agency had exceeded the regulatory authority granted to it under the Clean Water Act of 1972.
While the usual process is for the public to be given an opportunity to comment on a proposed rule change before the rule goes into effect, in this case the rule will become effective immediately upon being published in the Federal Register. That is because the rule change is being made in response to a court ruling.
Prior to the Sackett ruling, “waters of the United States” were defined by a 2006 Supreme Court ruling that stated that waters were subject to EPA’s regulation if they shared a “significant nexus” with navigable waters. However, what constituted a significant nexus was often a judgement call. In the case of the Sacketts, moist patches on their property were judged to have a significant nexus with a nearby lake.
Under the new rule, EPA will regulate tributaries of navigable waters that are relatively permanent, standing or continuously flowing bodies of water. EPA will also regulate relatively permanent wetlands with a continuous surface connection to navigable waters or their tributaries.
The presence of a term like “relatively” in the regulation opens the door for future disputes.
While the rule changes were issued without a comment period, voices have questioned whether the revised rule conforms to the Supreme Court’s ruling.
The attorney with the Pacific Legal Foundation who represented the Sacketts, Damien Schiff, suggested that the new rule does not limit the regulation of certain streams and ditches as called for in the Sackett ruling. He said, “I think this attempt to keep it vague, whether it is wisely strategic in a political sense, is just not legally sustainable.”
The National Apartment Association issued a statement on the revised rule which stated in part:
The National Apartment Association (NAA) and the National Multifamily Housing Council (NMHC) are disappointed with the final Waters of the U.S. (WOTUS) rule announced yesterday by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers. The new rule will only serve to worsen housing affordability and increase costs for housing providers and residents.
The revised rule does not comply with Supreme Court precedent and with the limits on regulatory jurisdiction set forth in the Clean Water Act. Federal authorities have chosen to ignore the Supreme Court’s direction in Sackett v EPA set down earlier this summer.
Housing providers strongly support protecting our water resources, but we cannot support the changes issued in the revised rule.
This rule is vague and creates uncertainty for America’s housing providers.
While Sackett may have been expected to bring clarity to WOTUS rules, litigation over the rules may not be over.
