I'm retired from the environmental consulting industry and don't have any plans on changing my status any time soon, but I still follow the trends, technologies, and regulations with interest.  After all, they still affect the air that I breathe, the water I drink, and the food that I eat.

Last month, the U.S. EPA and the Army Corps of Engineers published a Final Rule in the Federal Register to update the definition of “waters of the United States” under the Clean Water Act.  The update was needed due to the Supreme Court ruling in Sackett v. EPA (2023) which construed "waters of the United States" more narrowly than the EPA and the Corps had. The Final Rule immediately went into effect on September 8, that is, without opportunity for public notice and comment.

The definition of “waters of the United States” is important because it determines what bodies the EPA can regulate under the Clean Water Act and where Corps of Engineers permits are needed. The definition has been a source of controversy and litigation for decades. 

Before the Sackett case, the EPA applied a definition from Supreme Court Justice Anthony Kennedy’s opinion in Rapanos v. United States (2006). Justice Kennedy's definition extended the EPA and Corps' jurisdiction not only to traditional navigable waters and to waters and wetlands that have a relatively permanent surface connection to navigable waters, but also those having a "significant nexus" to those waters, that is, those that could “significantly affect the chemical, physical, and biological integrity of” the regulated water bodies.  

In other words, in order to protect the quality of, say, the Mississippi River, the agencies had to protect the quality of the tributary rivers and streams feeding the Mississippi, and then the adjacent creeks, wetlands, and even drainage ditches that in turn fed those tributary rivers and streams, even if those adjacent creeks, wetlands, and drainage ditches aren't themselves navigable.  For purposes of determining which waters are covered, Kennedy's opinion defined “adjacent” to include those that are bordering, contiguous to, or neighboring other waters of the United States, even if they are separated from such waters by manmade barriers such as dams or dikes. 

Industries, developers, and some municipalities howled in protest of the Rapanos decision. Farmers with narrow ditches between fields found themselves having to comply with rules developed for seaways and riverways, even though those ditches were often dry and couldn't float a small raft even when full, much less a barge or cargo ship.  On the other hand, environmentalists praised the decision, saying that without the broad definition of "waters," raw sewage and hazardous wastes could simply be dumped without consequence into a feeder stream rather than directly into a lake or river.   

More litigation ensued, and this year the far-right Roberts court sided with industry and held in the Sackett decision that the “significant nexus” test and Kennedy's definition of “adjacent” are inconsistent with the intention of the Clean Water Act.  The new Final Rule released in September complies with the Sackett decision by eliminating the “significant nexus” test and defining “adjacent” (for purposes of wetlands) as “having a continuous surface connection.”

This is disappointing. This is the EPA and Corps complying with a conservative court ruling and relinquishing some of their authority to protect the environment.  The Final Rule does not make the world any safer, doesn't provide any increased protection to the environment, and doesn't even clear up ambiguities left by the Sackett decision. 

For example, the Final Rule does not define what “continuous surface connection” means. The Sackett decision says that a “temporary interruption” by “phenomena like low tides or dry spells” would not render a water body beyond the Agencies' jurisdiction, but there is no guidance on how often or how long a tributary could be dry or disconnected from a navigable water and still constitute “waters of the United States.” It is still not clear whether man-made features such as pipes that connect streams and wetlands to navigable waters are subject to regulation. 

These and other issues left unresolved by Sackett and the Final Rule will undoubtedly be the source of further litigation.