CFACT to Feds: Define “water” sensibly

Under Obama, the Federal Government tried to assert control over just about every pond, stream, and damp puddle in America as part of the navigable (laughable) waters of the United States, or WOTUS.  The Supreme Court brushed them back. Time to clarify.

 

Public Comments Submitted to the U.S. Environmental Protection Agency and the U.S. Department of the Army:

Updated Definition of “Waters of the United States”

Docket ID No. EPA-HQ-OW-2025-0322

Submitted by the Committee for a Constructive Tomorrow (CFACT)

Washington, D.C.

January 5, 2026

The Committee for a Constructive Tomorrow (CFACT), a nonprofit organization focusing on natural resources and property rights, is pleased to comment on the proposed rule by the Environmental Protection Agency (EPA) and the Department of the Army, primarily Corps of Engineers (Corps) (together, the agencies), aimed at providing greater regulatory certainty and consistency by clarifying definitions of “waters of the United States” (WOTUS) under the Federal Water Pollution Act Amendments of 1972, also known as the Clean Water Act (CWA). The proposed rule comes in the wake of the May 2023 U.S. Supreme Court decision in Sackett v. Environmental Protection Agency (Sackett v. EPA).

The lack of clarity and predictability over what constitutes a WOTUS subject to federal regulatory jurisdiction has been the subject of seemingly endless litigation for decades. High-profile Supreme Court decisions, such as Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (2001) and Rapanos v. United States (Rapanos) (2006) conspicuously failed to deliver clarity to the regulated community, in this case, predominantly rural landowners with certain bodies of water on or adjacent to their property.

The agencies are to be commended for their comprehensive response to the May 2023 Sackett decision and to the September 2023 conforming rule, the latter of which inadequately addressed the post-Sackett legal landscape.

Consistency of Language

The agencies’ stated goal of clarifying the scope of federal jurisdiction by revising key aspects of the definition of “waters of the United States” would benefit by removing inconsistencies found in the definition, particularly as they relate to wetlands. Specifically, the key word “water” is present in some parts of the proposed rule but is conspicuously absent in other parts. For example, the proposed rule references the Sackett-based requirement of a “continuous surface connection” to adjacent wetlands. But in their discussion of the implementation of “relatively permanent,” the agencies explain this to mean “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.” While the “wet season” will be discussed below, the important point here is the clear reference to “standing or continuously flowing bodies of surface water.” (emphasis added) Jurisdictional wetlands must have a continuous surface-water connection to navigable waters of the United States so as to be indistinguishable from those waters, with no demarcation. To avoid confusion – and unnecessary litigation – it is essential that the water connection be uniform throughout the proposed rule.

The proposed rule’s “wet season’ concept does not adhere to the Supreme Court’s Sackett requirement that wetlands be “indistinguishable” from a regulated water body. Nor does the “wet-season” language address the crucial WOTUS requirement of navigability. The term “wet season” does not appear in the Sackett decision, nor is it defined in the proposed rule. And by including it in the proposed rule, EPA and the Corps have unilaterally conjured a regulatory category that in no way is moored to the Sackett ruling. In doing so, they have strayed from the prescriptive language of the Supreme Court ruling. Geological depressions that are dry throughout most of the year except during brief “wet seasons” clearly lack a continuous surface water connection to navigable waters of the United States and cannot be subject to WOTUS jurisdiction.

A recent case involving the Corps and the owners of a small parcel of land in Idaho illustrates the importance of staying within the legal confines set by Sackett v. EPA. In early 2025, the Corps declared an Idaho couple’s 4.7-acre property a federally regulated wetland, claiming a small, sometimes soggy depression in their otherwise flat, dry land is “part of” a “navigable” waterway and thus subject to federal regulation under the CWA.

Yet the small parcel owned by Caleb and Rebecca Linck in northern Idaho’s Bonner County does not meet the statutory requirements of a jurisdictional wetland under Sackett. According to the Corps’ argument, parts of the couple’s property are somehow connected to an alleged wetland (nothing more than a swale) across a 35-foot-wide county gravel road, even though the road is elevated above both pieces of land and contains no culverts through which water could pass. The swale touches an unnamed stream, which is connected to a named stream, which is then connected to a navigable water, Lake Pend Oreille. The lake is two miles from the Linck’s land, with no continuous surface water connection between the two. ¹

“The Corps is thumbing their nose at the rule of law by ignoring clear Supreme Court precedent and by asserting authority over land that obviously does not meet the clear federal requirements for federal wetlands regulation,” said Charles Yates, an attorney with the Pacific Legal Foundation (PLF), in a press release. “The Clean Water Act does not give the federal government a blank check to regulate every puddle, swale, or ditch.” ²

The Corps quietly dropped the case against the Idaho couple in late 2025, after Adam Telle received Senate confirmation as the new assistant secretary of the Army for Civil Works, which includes the Corps.

The Corps’ action against the Idaho landowners was launched nearly two years after the Supreme Court handed down its Sackett decision. This underscores the importance of what EPA and the Corps are trying to do in crafting a rule to implement Sackett. If this endeavor is to succeed, linguistic consistency in the use of the word “water,” and foregoing the temptation of going beyond the jurisdictional confines laid down by Sackett (“wet season”) are essential.

Thank you very much for your consideration.

Bonner Russell Cohen, Ph. D.

Senior Policy Analyst

Committee for a Constructive Tomorrow (CFACT)

Washington, D.C.