The EPA and Army Corps asked for Clean Water Act recommendations. Here are ours.
Note: The photo above is of the Sacketts’ Idaho property (marked by dotted line), which the EPA claimed was regulable as “navigable water.”
It’s been nearly two years since the Supreme Court ruled for our clients, Chantell and Mike Sackett, in the landmark Clean Water Act case Sackett v. EPA. Yet the government still isn’t complying with the justices’ ruling.
That may soon change: On March 24, 2025, new leadership at the Environmental Protection Agency and Army Corps announced they would revisit their approach to implementing the Clean Water Act in the wake of Sackett. They also issued a notice requesting recommendations from the regulated public.
PLF submitted our written recommendations, urging the EPA and Army Corps to do what they should have done two years ago: Conform their administration of the Clean Water Act to the Supreme Court’s ruling in Sackett.
The plain text of the Clean Water Act authorizes EPA and the Corps to administer a permitting scheme to regulate “discharges” of “pollutants” into “navigable waters,” defined as “the waters of the United States.” This definition functions as an absolute limitation on the authority exercised by EPA and the Corps under the Clean Water Act. The agencies may regulate discharges of pollutants to “navigable waters,” but no further. For over fifty years, however, EPA and the Corps have expanded their claimed authority by broadly interpreting the term “navigable waters” to reach minor drainage ditches, small puddles, and all other manner of otherwise dry-land features.
This is no small matter. The agencies define “discharge of a pollutant” broadly enough to penalize ordinary land use activities like operating a plow or digging a few small ponds to protect one’s family home from fire. This in turn means that the agencies’ unchecked approach to “navigable waters”—extending their authority to fields, ditches, and puddles—has subjected private landowners in every corner of the country to crushing civil and even criminal liability for engaging in ordinary land use activities on otherwise dry lands.
PLF’s landmark 2023 victory in Sackett definitively brought to a halt the agencies’ expansive approach. The Supreme Court unanimously rejected EPA and the Corps’ historically broad approach. And a majority set forth a clear and substantially narrowed standard for federal CWA authority. This resounding defeat necessitated a dramatic break from EPA and the Corps’ historical practices.
Yet none has occurred. Instead, since Sackett, the agencies have continued to assert staggeringly broad authority over private land in every corner of the nation. This follows a familiar pattern of agency insubordination. As the Supreme Court observed in Sackett, after every past loss, the agencies have intransigently sought to maintain an overly broad view of their own authority and, when challenged, have sought to relitigate issues definitively resolved against them.
“EPA and the Corps must take the opportunity presented by the Notice to once and for all define ‘navigable waters’ to properly conform their conduct to the CWA,” PLF wrote in our letter to the agencies.
Our written recommendations for the future regulatory definition of “the waters of the United States” build on PLF’s experience as counsel of record in Sackett and our experience litigating four Clean Water Act cases after Sackett. Adoption of PLF’s recommendations is essential to conform EPA and the Corps’ conduct to the mandatory limitations imposed upon their authority under the Clean Water Act. And it’s necessary if the country wants to end, finally, the decades of unlawful and overreaching Clean Water Act regulation that private property owners across the United States have suffered.
