The definition of “waters of the United States” under the Clean Water Act (CWA) has long been a point of contention, its delineation frequently swaying with shifts in the executive branch. The Trump administration’s recent announcements illustrate its intention to redefine the scope of the CWA more stably and predictably compared to its predecessors.
The current efforts led by the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers have resulted in the issuance of a memorandum clarifying the “continuous surface connection” requirement between wetlands and other waters, a pivotal concept following the Supreme Court’s 2023 decision in Sackett v. EPA. This guidance mainly adheres to language from prior court rulings like Rapanos v. United States, suggesting that only wetlands directly abutting or touching other regulated water bodies fall under federal jurisdiction.
Moreover, the administration has called for public input on refining the CWA’s key terms, signaling a penchant for greater transparency and stakeholder engagement. This approach underscores a strategic shift towards a durable regulatory framework, one intended not simply to replace prior regimes but to endure through subsequent administrations. As detailed in United States v. Riverside Bayview Homes, Inc., the continuity principle involves adhering to the language set by the judiciary to mitigate risk from anticipatory legal challenges.
In practice, the immediate impacts appear minimal yet consequential for specific environmental contexts. For instance, focusing on physical abutment while de-emphasizing indirect connections via non-jurisdictional ditches or pipes, aligns the federal stance with the intent of the Sackett decision. This may result in fewer wetlands being federally regulated, a notable deviation from the broader assertions of previous regulatory interpretations.
It is clear that these adjustments are preliminary measures aimed at crafting a rule resilient to legal scrutiny while minimizing regulatory uncertainty. However, the road to establishing a revised definition of “waters of the United States” is long and fraught with judicial intersections, ensuring that the regulated community will continue to navigate the prevailing definitions for the foreseeable future.