On Tuesday, February 18, 2025 The Institute for Energy Research delivered a petition seeking amendment of 40 C.F.R. § 120.2, 33 C.F.R. § 328.3, defining “Waters of the United States” to the office of the Environmental Protection Agency’s Administrator.
Under the Clean Water Act, states have authority over the permitting process for state waters. However, this was intended to be a consultative process, enabling states to request mitigation measures or changes to infrastructure routes, not to serve as an outright ban on certain infrastructure. This petition requests that the U.S. EPA reconsider and revise the final rule titled Clean Water Act Section 401 Water Quality Certification Improvement Rule, published on September 27, 2023.
Accompanying the petition, IER President Tom Pyle provided the following letter:
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Dear Administrator and Assistant Secretary:
Pursuant to the Administrative Procedure Act, 5 U.S.C. § 553, the Institute for Energy Research respectfully requests that the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, the “Agencies”) initiate notice-and-comment rulemaking to define the phrase “Waters of the United States,” 33 U.S.C. § 1362(7), under the Clean Water Act (“CWA”).
For years, businesses and private landowners have operated under a sweeping definition of “Waters of the United States.” This definition results from the Agencies’ interpretation of the “significant nexus” test—derived from the concurring opinion of a single Justice in a single Supreme Court decision. In January 2023, the Agencies codified their interpretation of the significant nexus test through rulemaking (“2023 rule”). But in Sackett v. EPA, 143 S. Ct. 1322, 1342 (2023), the Supreme Court held that the U.S. Environmental Protection Agency “has no statutory basis to impose” the significant nexus test as the linchpin of CWA jurisdiction.
Without seeking comment on the effect of Sackett on its definition of “Waters of the United States,” the Agencies promulgated a revision to the 2023 rule that did little more than remove the significant nexus test from the rule text. What remains is a definition of “Waters of the United States” that still outstrips the authority that Congress conferred in the CWA and that contradicts the Supreme Court’s holding in Sackett.
This petition describes the existing regime’s numerous defects which necessitate a new rulemaking to substantially redefine “Waters of the United States.” First, the Agencies’ post-Sackett conforming rule left parts of the 2023 rule’s operative text and the preamble untouched that were rejected by the Supreme Court. Second, Sackett conclusively rejects inclusion of all interstate waters, regardless of navigability, as “Waters of the United States.” But the conforming rule leaves intact the 2023 rule’s purported grant of jurisdiction over such waters. Third, in excising references to the significant nexus test, the operative definition of “Waters of the United States” now relies solely on the concept of “relatively permanent.” But the rule offers no guidance for applying that standard. Fourth, Sackett mandates that the CWA covers only wetlands that “‘as a practical matter [are] indistinguishable from Waters of the United States.’” 143 S. Ct. at 1341 (quoting Rapanos v. United States, 547 U.S. 715, 742 (2006) (plurality)). But under the current rule, the Agencies appear to take the position that no hydrologic connection is necessary between a wetland and a covered water. Finally, these errors have a cascading effect, rendering the 2023 rule’s coverage of certain tributaries and impoundments untenable.
The Agencies’ current interpretation of “Waters of the United States” is out of step with Supreme Court precedent and fails to honor the congressional design of the CWA. It will also create widespread regulatory uncertainty—precisely the result the Supreme Court sought to forestall in Sackett. The Institute for Energy Research respectfully requests that the Agencies initiate a joint rulemaking to address these flaws.
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The full petition is available to review here.
