In response to the landmark US Supreme Court decision in Sackett v. EPA, the Environmental Protection Agency (EPA) and the US Army Corps of Engineers, have published a final rule effective as of September 8, 2023. This new directive, aptly referred to as the Sackett rule, provides a concrete definition of the term ‘waters of the United States’ (WOTUS) as it is used in the Clean Water Act (CWA).
For the uninitiated, the Sackett vs. EPA case (562 U.S. 406 (2011)) was a seminal legal battle that challenged the breadth of the EPA’s powers with respect to private individuals and corporations. The Supreme Court’s ruling brought significant attention to the potential overreach of the EPA when it comes to the interpretation of the CWA.
One of the areas under scrutiny was the vagueness around the term ‘waters of the United States’, an ambiguity that has led to enforcement disputes between firms and the EPA. This needed to be addressed to provide clarity regarding enforcement boundaries.
By defining the term, the new Sackett Rule will bring more certainty to affected parties operating in traditional industries like development, agriculture, and transportation, among others. The definition will help to alleviate past uncertainties and ambiguities associated with enforcement and jurisdiction and provide a more predictable regulatory landscape.
It remains to be seen how this new rule, set to take effect in September, will influence case law. It also invites introspection on how regulation can be more effectively shaped to balance environmental stewardship and industry needs.
For a deeper analysis of this new ‘waters of the United States’ definition, access the complete legal commentary by K&L Gates.