Americans For Prosperity Foundation Files Comment Supporting The Administration’s Continuing Efforts to Update and Further Improve Key WOTUS Rule

Last week, Americans for Prosperity Foundation (“AFPF”) filed a comment in support of a supplemental proposal by the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers to bring the agencies’ regulatory definition of “waters of the United States” (“WOTUS”)—a notoriously vague legal term of art that defines the scope of federal jurisdiction under the Clean Water Act (“CWA”)—into compliance with the Supreme Court’s landmark decision in Sackett v. EPA, as well as other statutory and constitutional limits on federal power.

The CWA is a well-intentioned but unartfully drafted federal environmental statute that, if construed overbroadly, potentially criminalizes a host of ordinary land use activities, such as moving dirt without a permit and routine farming and ranching practices. In the past, the agencies have interpreted the statute—which applies to “navigable waters” statutorily defined as WOTUS—to broad swaths of territory, including areas that ordinary people would consider to be land, even if sometimes soggy, as well as to assorted puddles, isolated ponds, ditches used for farming, and the like. The Supreme Court has repeatedly rebuffed the agencies’ zealous and overbroad interpretations of the scope of their own power, emphasizing the serious due process and federalism problems with the agencies’ views on their own authority—most recently in Sackett. And in the past, the agencies have repeatedly ignored or minimized the import of the Court’s decisions rejecting their overreach. The time has come to put an end to this problematic state of affairs. And this rulemaking presents the ideal opportunity to do so.

AFPF applauds the agencies’ efforts to create a durable and clear rule that faithfully implements the Sackett decision, which established a clear two-part test for whether “wetlands” are subject to federal jurisdiction or instead must be regulated and protected at the state and local level; respects the best reading of the CWA consistent with the Supreme Court’s seminal decision in Loper Bright overturning Chevron deference; and puts an end to the regulatory ping-pong and agency overreach that has occurred over the past five decades. This rulemaking will not only better protect landowners’ due process and private property rights but is a key piece of permitting reform that promises to cut needless red tape and reduce unnecessary permitting burdens.

In January, AFPF filed a comment in support of the agencies’ initial proposal to update the regulatory definition of “WOTUS” in light of Sackett. (Additional background is available here.) The agencies initially proposed a number of meaningful reforms to bring the WOTUS definition in line with Sackett’s requirements, not the least of which was repealing the prior administration’s so-called “conforming rule,” which both minimized and ignored the Supreme Court’s ruling in Sackett.But more remains to be done. And the agencies’ supplemental proposal outlines further improvements, revising the proposed regulations to better incorporate key concepts from Sackett into a more brightline and easier to implement and understand rule, which would provide fairer notice and greater certainty to property owners and other stakeholders.

AFPF’s supplemental comment offers additional suggestions for further improvements to potentially make the final regulations even better. As Sackett recognizes, for example, under our system of federalism, state and local governments have primary authority over most land and water use decisions. As Justice Thomas’s concurring opinion in Sackett explains, the CWA, properly understood, reflects this constitutionally required balance, principally centering federal regulation around open, navigable bodies of water like the Chesapeake Bay, Great Lakes, and Mississippi River, which are capable of use in interstate commerce. AFPF continues to urge the agencies to fully enforce those additional limits on federal jurisdiction, thereby allowing state and local governments freedom to decide for themselves what policy solutions work best and what level of protection is appropriate for them based on local and regional conditions and needs. That division of labor makes sense both from a constitutional and from a policy perspective.

AFPF applauds the agencies for continuing to seek feedback from stakeholders, which, we hope, will result in an even stronger final rule. Finally, kudos to the Pacific Legal Foundation for litigating the Sackett case—including winning twice in the Supreme Court—and to the Sacketts for having the courage to take on EPA’s overreach and the full weight of the federal government for the better part of two decades. Without their efforts, this rulemaking would not have occurred.

Read the full comment here.