A seasonal creek runs through a meadow in Pinnacles National Park, California. (Photo: Sundry Photography/Getty Images)

USA - Heritage Foundation Commentary: Supreme Court Can, Should Resolve the Waters of the United States Issue

For decades, there has been major confusion regarding what waters are regulated under the Clean Water Act.

In 2006, the late Justice Antonin Scalia in Rapanos provided much-needed clarity on what waters are covered under the Clean Water Act, and specifically what waters, including wetlands, should be considered “waters of the United States” (informally known as WOTUS) under the Clean Water Act. This definition is extremely important because it clarifies what waters the EPA and the U.S. Army Corps of Engineers have jurisdiction over under the law.

Unfortunately, Scalia’s opinion in Rapanos was a plurality opinion, not getting the necessary five votes for a majority. As a result, the Supreme Court wasn’t able to provide the clarity it could have 15 years ago.

Now the Supreme Court gets a chance to fix this. And it is something that definitely needs to be fixed.

Private property owners remain confused as to what waters are regulated because the EPA and the U.S. Army Corps of Engineers have been all over the place when it comes to defining WOTUS.

This isn’t a new phenomenon. The Rapanos case, like Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, just five years earlier in 2001, focused on overreaching federal efforts to try and regulate waters. In both cases, the Supreme Court struck down the overreach.

Since 2015, there have been four different WOTUS regulatory proposals. In 2015, there was the Obama administration’s Clean Water Rule. The Trump administration rightfully repealed that rule and recodified regulations that existed before the 2015 rule (regulations that were also a mess), until it finalized its own WOTUS rule. In 2020, the Trump administration finalized the Navigable Waters Protection Rule.

In December, the Biden administration proposed another rule, which it has said is just temporary until it comes out with its own WOTUS rule. This “temporary” rule didn’t simply recodify the already confusing regulatory text before the 2015 rule, but, making things even more complicated, it is in fact a new rule altogether. As the Biden administration explains, this temporary rule is “updated to reflect consideration of Supreme Court decisions.”

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