What waters are considered “waters of the United States” or WOTUS under the Clean Water Act (CWA)? This question is critical because it determines which waters are regulated under the statute. The EPA and the U.S. Army Corps of Engineers have struggled to develop a definition that can pass legal muster, in large part because they have tried to regulate waters that go beyond their statutory authority. For many years, the courts didn’t provide clarity either. But in 2023, the US Supreme Court in Sackett v. EPA specified what waters are regulated, including to what extent wetlands are covered.
Currently, a new proposed WOTUS rule is being reviewed by the Office of Information and Regulatory Affairs. What should the rule include and what is required for the rule to be consistent with Sackett? The Competitive Enterprise Institute’s Daren Bakst discusses this important issue with Charles Yates, an attorney at the Pacific Legal Foundation who was on the litigation team that represented Chantel and Michael Sacket before the US Supreme Court.