6 The term “pollutant” is broadly defined and includes “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6).7 The term “point source” means any discernible, confined and discrete conveyance, including . . . any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

The U.S. Supreme Court has issued its opinion in the landmark Clean Water Act (“CWA”) case of Sackett v. EPA, No. 21-454 (May 25, 2023). This decision delivers a significant change in terms of the reach and jurisdiction of the CWA, and supplies some harsh critiques between the Justices that all agreed in the judgement but were fiercely divided on how to get there.The question presented to the Court was, seemingly, straightforward: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7).” But, this question has wide-reaching implications. The definition of “waters of the United States” (“WOTUS”) sets the jurisdictional limits of the CWA. Under the CWA, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the Act, so the agencies have been left to try to craft a definition.The Army Corps and EPA first proposed a WOTUS definition in 1977 and it has faced revisions and legal challenges ever since. The most controversial aspect of the WOTUS definition throughout its history has been the inclusion of wetlands and ot

CLICK HERE TO DOWNLOAD A PDF VERSIONOn Monday, January 24, 2022, the U.S. Supreme Court granted certiorari in the case of Sackett v. U.S. Environmental Protection Agency, 19-35469 to decide “[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U. S. C. §1362(7).” Because the term “waters of the United States” (WOTUS) is not defined under the Clean Water Act (CWA), this will be the fourth time that the Supreme Court has considered this issue.

Download PDFThe United States Supreme Court (“SCT”) issued an order on January 24th granting a petition for a writ of certiorari to address the following question:Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7).See Sackett, Michael, et ux. V. EPA, et al., 21-454.

The question presented to the Court is, seemingly, straightforward: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7).” But, this question has wide-reaching implications.

By that time, the Trump Administration was in power, and the Clean Water Rule did not survive the rollback of environmental regulations.In February 2017, President Trump ordered the EPA Administrator and Assistant Secretary of the Army for Public Works to review the Clean Water Rule and "consider interpreting the term 'navigable waters,' as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)," rather than Justice Kennedy's opinion. In December 2019, the EPA and Department of the Army repealed the Clean Water Rule, briefly restoring the 1980s WOTUS rule, until the NWPR was published and took effect on June 22, 2020.

In the CWA, a “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source” and a “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(12), (14). The term “navigable waters” is defined in the CWA as “the waters of the United States, including the territorial seas.”

EPA’s NPDES website indicates that 46 states and one territory are currently authorized to administer the NPDES permitting program.In the CWA, a “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source” and a “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(12), (14). The term “navigable waters” is defined in the CWA as “the waters of the United States, including the territorial seas.”

vironmental Protection Agency for Clean Water Act Protections of Wetlands and Streams (“Hearing”)Committee Chairman Tom Carper of Delaware described the Hearing purpose as to:. . . examine the implications of the Supreme Court’s decision in Sackett v. Environmental Protection Agency for our nation’s wetlands and streams.The Chairman further stated:While the Clean Water Act has been immensely successful at cleaning up our country’s waters and slowing the loss of wetlands, the Sackett decision has jeopardized nearly a half-century of progress under this bedrock environmental law.The United States Supreme Court issued an Opinion on May 25th in Sackett v. EPA, et al. addressing the scope of the Clean Water Act definition of “waters of the United States” (“WOTUS”). A Petition for Writ of Certiorari had been granted to address the following question:Whether the Ninth Circuit set for the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7).The Supreme Court Majority Opinion significantly narrowed the scope of what constitutes a WOTUS for purposes of the Clean Water Act.The Majority articulated a two-part process for determining a WOTUS:The CWA’s use of “waters” in §1362(7) refers only to “geo-graphic[al] 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.To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”The definition of WOTUS is arguably one of three critical jurisdictional term

The Environmental Protection Agency and the Army Corps of Engineers recently announced a revised and final rule amending the definition of Waters of the United States (WOTUS) following the Supreme Court decision in Sackett v. EPA that invalidated the agencies’ previous definition. The revised rule took effect immediately upon its publication in the Federal Register on September 8.The definition of “waters of the United States” is significant because it sets the jurisdictional limits of the Clean Water Act (CWA). Under the CWA, EPA and the Army Corps have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the CWA, so the agencies have been left to try to craft a definition.Since the Supreme Court’s 2006 decision in Rapanos v. United States, the agencies have relied on a “significant nexus” standard to include nearby wetlands and ephemeral waterways in the WOTUS definition. A “significant nexus” was established if the body of water “either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.”In January of this year, the agencies published a “Revised Definition of ‘Waters of the United States’”, which incorporated both a “relatively permanent” standard and a “signi