In a short opinion, the Fifth Circuit focused on the language in two sections within the Act's citizen suit provision: 33 U.S.C. §§ 1365(f)(1) and 1365(f)(6). Section 1365(f)(1) allows citizens to bring suit based on an unlawful act under 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants except in compliance with specific sections of the Clean Water Act, including sections 402 and 404. Section 1365(f)(6), on the other hand, allows citizen plaintiffs to bring suit based on violations of "a permit or condition thereof issued under" section 402, but not section 404.Although the statute does not expressly confer the right to bring suit based on violations of section 404 permit conditions, the plaintiffs argued that section 1365(f)(1)'s reference to "unlawful acts" under 33 U.S.C. § 1311(a) includes not just citizen suits based on unpermitted discharges (i.e., discharges without section 402 or 404 permits), but also suits based on violations of conditions set forth in such permits.

" The Southern Environmental Law Center also pointed out that several public lakes lost protection under the NWPR, including Lake Keowee in South Carolina, a source of drinking water for nearly 400,000 people.On the other hand, the NWPR's exclusion of groundwater has been undermined to an extent by the Supreme Court's April 2020 decision in County of Maui v. Hawaii Wildlife Fund. In that case, the Court held that 33 USC §§1311(a) and 1362(12)(A) "require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters." Thus, even if groundwater is not itself part of WOTUS, some polluting activities via groundwater nonetheless may require a permit under the Clean Water Act.Reactions to Plan to Promulgate a New RuleThe environmental groups that opposed the NWPR generally have supported the Agencies' intention to repeal it.

is time. Two of the industrial point source categories are Organic Chemicals, Plastics, and Synthetic Fibers (“OCPSF”), 40 C.F.R. Part 414 (with the exception of per-and polyfluoroalkyl substances (“PFAS”) discharged from PFAS manufacturing facilities) and Plastics Molding and Forming, 40 C.F.R. Part 463 for which effluent limitations, effluent limitations guidelines and pretreatment standards have not been revised in over three decades.On April 11, 2023, 12 non-governmental organizations (“Petitioners”), which work to protect waters of the United States, filed a petition in the United States Court of Appeals for the Ninth Circuit for review of the final actions by the EPA and EPA Administrator Michael Regan in Effluent Guidelines Program Plan 15. The Petitioners asserted that they have standing to seek judicial review of this decision as they and their members have been injured by EPA’s Plan 15 decisions, and those injuries can be redressed by a favorable decision by the Court. Under 33 U.S.C. §§ 1311, 1312, 1316, and 1317, the Petitioners asserted that EPA’s decisions in Plan 15 not to revise the effluent limitations, effluent limitation guidelines, standards of performance for new sources, and pretreatment standards for the seven industrial point source categories were “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” under the federal Administrative Procedure Act, 5 U.S.C. § 706(2)(A).On May 2, 2023, the EPA published its Draft National Strategy to Prevent Plastic Pollution in the Federal Register for public comment. EPA’s Draft National Strategy to Prevent Plastic Pollution calls for a reduction of plastic waste in waterways and oceans through voluntary actions, including improving water management, and increasing research and public awareness of the impacts of microplastics in waterways and oceans, with a goal of eliminating plastic waste releases from land-based sources into the environment” throughout the United States by 2040. Various

strates how the Supreme Court’s newly formalized “major questions doctrine” is likely to impede federal agencies and NGOs’ attempts to expand their use of the existing environmental statutes to address new (or newly identified) concerns. Following the Court’s clear statement of the doctrine in West Virginia, and despite Justice Kagan’s pushback, “an inferior court must simply apply the major-questions doctrine” when faced with any statutory reading with “significant political and economic consequences.”N.C. Coastal Fisheries Reform Grp. v. Capt. Gaston LLC, No. 21-2184, 2023 WL 5009246 at *2 (4th Cir. Aug. 7, 2023) (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022)).Biden v. Nebraska, 143 S. Ct. 2355, 2380 (2023) (Barrett, J., concurring).Id. at 2382 (emphasis on original).Id. at 2379-83.Id. at 2384.West Virginia, 142 S. Ct. at 2630 (Kagan, J. dissenting).Id. at 2641.Biden v. Nebraska, 143 S. Ct. at 2397(Kagan, J. dissenting).N.C. Coastal Fisheries, 2023 WL 5009246, at *2 n.5.33 U.S.C. §1311(a).33 U.S.C. §1362(6).33 U.S.C. §1362(12).Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322, 1336 (2023).33 U.S.C. §1362(14).[View source.]

uous surface connection and yet may still affect the chemical, physical, or biological integrity of nearby navigable waters. It also led to pending cases such as Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex., filed Jan. 18, 2023) and Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023), which are challenges to the 2023 regulations to be successful. Ultimately, Congress will need to step in to create a less ambiguous definition of WOTUS, and the Agencies will need to promulgate a set of consistent and unambiguous regulations, which will give clear direction to all interested parties and avoid extensive litigation.Pending either some action by Congress to clarify the statutory definition or further regulatory action consistent with the holding in Sackett, interpretation of the extent of the Agencies’ jurisdiction is in a state of limbo, and it is probable that there will be inconsistencies among the Corps' districts in their jurisdictional determinations. 33 U.S.C. § 1311(a). 33 U.S.C. § 1319. Clean Water Act § 502(12), 33 U.S.C. § 1362(12).Id. 33 U.S.C. 1362((7). 40 C.F.R. § 6.102 (1979). 33 C.F.R. § 328.3 (2015). 33 C.F.R. § 328.3 (2019). 33 C.F.R. § 328.3 (2023).American Farm Bureau Fed'n v. EPA, No. 3:23-CV-20 (S.D. Tex., filed Jan. 18, 2023); Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023).Kentucky v. EPA, No. 3:23-CV-00007 (E.D. Ky., filed Feb. 22, 2023); Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex. Filed Jan. 18, 2023); W. Virginia v. EPA, No. 3:23-CV-00032-PDW-ARS (E.D.N.D., filed Feb. 16, 2023).Sackett v. EPA, 8 F.4th 1075, 1092-93 (9th Cir. 2021) rev'd 598 U.S. ___ (2023).Sackett v. EPA, 2023 U.S. LEXIS 2202 at *39.Id. at *37.Id.Sackett, at *39, citing Rapanos, 547 U.S. at 755. 33 C.F.R. § 328.3 (2020); 33 U.S.C. § 1251 et seq. 33 C.F.R. §328.3(a)(ii).

ble jurisdictional determination, can now look to the Sackett decision when evaluating whether they can legally fill a wetland for a project. Developers may still need to engage consultants to determine if regulated wetlands could be impacted and would be advised to do so.Developers and landowners should be mindful that individual states may have separate wetland laws and regulations applicable to their projects. For example, Ohio regulates isolated wetlands by prohibiting the filling of such areas without a state permit. Filling such wetlands can result in notices of violation and orders from the Ohio EPA to restore the isolated wetland.It will be interesting to see whether individual states will fill the gap in wetland protection left after the Sackett decision. KMK will continue to monitor these matters. See Sackett v. Environmental Protection Agency, No. 21-454, -- U.S. -- (May 25, 2023). Since 1972, the CWA has prohibited “the discharge of any pollutant[.]” See 33 U.S.C. §§ 1251, 1311(a). The broad reach of the Act challenged by the Sacketts comes from broad definitions of terms such as “pollutant” which includes “any addition of any pollutant to navigable waters” where “navigable” is, in turn, broadly defined to mean “the waters of the United States.” See 33 U.S.C. §§ 1362 (7) and (12) (emphasis added). In the Sackett decision, the Justices focused on language found in section 1344(g)(1) which provides that states can administer their own permits for discharge of dredged or fill material into navigable waters “other than those waters which are presently used … to transport interstate or foreign commerce … including wetlands adjacent thereto[.]” 33 U.S.C. § 1344(g)(1). The Justices disagreed on how to interpret “adjacent” with the majority holding that the wetland has to be “adjoining” to covered waters by having a continuous surface connection. As to what “continuous” means, Justice Alito did “acknowledge that temporary interruptions in surface connection may sometim

ualified as jurisdictional “waters of the United States” (WOTUS) because the wetlands were near a ditch that fed into a creek which in turn fed into a nearby lake. The district court agreed with the EPA, entering summary judgment against the Sacketts. The United States Court of Appeals for the Ninth Circuit affirmed.In Sackett, the Supreme Court reversed the lower court and ruled for the Sacketts, concluding that wetlands on their property were not subject to regulation under the CWA. The Court clarified that wetlands are covered waters only when they share a “continuous surface connection” to bodies of water that are covered in their own right, significantly narrowing the federal government’s jurisdiction over wetlands under the CWA.Defining “Waters of the United States”Congress provides for the regulation of wetlands under the CWA, which is jointly enforced by the EPA and the Army Corps of Engineers (Corps). The CWA prohibits “the discharge of any pollutant” into “navigable waters.” 33 U.S.C. §§ 1311(a), 1362(12)(A). The CWA first defined “navigable waters” as “the waters of the United States, including the territorial seas,” 33 U.S.C. § 1362(7). Congress later amended the CWA, clarifying that it extends to wetlands “adjacent” to traditional waters of the United States. 33 U.S.C. § 1344(g)(1). Eventually the EPA and Corps issued regulations defining WOTUS similarly, claiming jurisdiction over wetlands “adjacent” to other covered waters. See 45 Fed. Reg. 33424 (1980); 47 Fed. Reg. 31810–31811 (1982). Federal courts and agencies have struggled to limit the breadthof these definitions ever since.The Supreme Court tried to clarify which wetlands were covered by the CWA in Rapanos v. United States, 547 U.S. 715 (2006). That decision offered two tests for CWA jurisdiction, though neither was backed by a majority of the Court. A plurality of the Court held that the CWA regulates “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own righ

regulate wetlands. However, the Court did not produce effective guidance to assist regulators in implementing the underlying goals of the CWA. Instead, the decision is likely to continue the ongoing debate between the executive branch and the Court over the reach of the wetlands regulatory provisions of the Act. Furthermore, by limiting the reach of the CWA, the Court’s majority opinion will further impact federal environmental review and related litigation that could have significant implications for those planning to execute — or challenge — a myriad of different development projects ranging from mining to pipelines to real estate developments.BackgroundOriginally enacted in 1972 and amended in 1977, the CWA authorizes the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) to regulate the deposit of dredged or fill materials into “navigable waters,” defined as “waters of the United States” and including wetlands that are “adjacent” to such waters. See 33 U.S.C. §§1311(a), 1344(a), 1344(g), 1362(7).In 2007, Michael and Chantell Sackett purchased two-thirds of an acre of property near Priest Lake, Idaho, where they filled in wetlands with dirt without seeking any permits to prepare to build a home. On one side, the Sacketts’ land is across a road from an unnamed tributary that feeds into navigable, intrastate Priest Lake. The EPA determined that the wetlands on the Sacketts’ property are adjacent to waters of the United States and, in late 2007, sent the Sacketts a compliance order ordering them to remove the material and informing them of possible fines under the CWA if they did not. The Sacketts, represented by the Pacific Legal Foundation, a property rights advocacy organization, brought an action in the federal district court in Idaho for declaratory and injunctive relief that the wetlands on their property were not “waters of the United States” under the CWA. After an odyssey resulting in a Supreme Court decision affirming their right to bring the

On May 25, 2023, the Supreme Court of the United States (“SCOTUS”) issued a decision, Sackett v. EPA, which dramatically curtailed the Environmental Protection Agency’s (“EPA”) authority to regulate certain wetlands under the Clean Waters Act (“CWA” or the “Act”).The CWA, enacted in 1972, has been the primary federal law regulating water pollution in the United States for over half a century. The Act is generally enforced by the EPA and the Army Corps of Engineers and has indisputably been effective in regulating water pollution in the United States.The Act prohibits the discharge of pollutants into “navigable waters,” which it defines as “the waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12)(A) (2018 ed.). However, since the Act’s inception, the meaning of this definition has been ambiguous and constantly evolving. Moreover, the Act broadly defines “pollutants” to include not only traditional notions of pollutants, but also more mundane materials like rock, sand, and dirt. 33 U.S.C. § 1362(6). The penalties for violating the CWA, negligently or knowingly, are often very severe, and include criminal charges or civil fines of over $60,000 per day for each violation.Prior to the Court’s decision in Sackett, the outer boundaries of the Act’s geographical reach were subject to the EPA’s guidance, which was convoluted and constantly evolving. This combined with the severe consequences for violating the act, posed a massive risk to land users who were often forced to obtain an expert’s opinion just to determine whether the Act applied to them or their property. By the EPA’s own admission, nearly all waters and wetlands were potentially susceptible to regulation un

complicate the litigation surrounding implementation of the Biden administration’s recent “waters of the United States” rule.Specifically, the Supreme Court held that the CWA’s use of “waters of the United States” refers “only to geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.” The decision adopts the “continuous surface connection” test first articulated in the plurality opinion of Rapanos v. United States, 547 U.S. 715 (2006).BACKGROUNDChantell and Michael Sackett own property located near Priest Lake, Idaho, and in 2007 they began filling the land with dirt and rock in order to build a house. According to EPA, that land contained wetlands subject to regulation under the CWA, and therefore that use of fill was an unlawful discharge of pollutants into navigable waters of the United States without a permit. See 33 U.S.C. §§ 1311, 1344.Pursuant to its authority under Section 309 of the CWA, EPA issued a compliance order directing the Sacketts to halt construction, restore the land, and provide EPA with access to the site. Failure to comply with the order could carry penalties of more than $40,000 per day of violation.The Sacketts challenged EPA’s compliance order, arguing that it was a final agency action subject to judicial review under the Administrative Procedure Act (APA) and that it deprived them of property without due process of law in violation of the Fifth Amendment. Lower courts dismissed the claims, holding that judicial review was not available until EPA initiated a case to either force compliance with the order or collect fines.However, the Supreme Court unanimously held in 2012 that the CWA compliance order was a final agency action with respect to EPA’s determination that the Sacketts’ property contained jurisdictional waters, and that the CWA does not preclude judicial review of EPA’s jurisdict