By Lawrence A. Kogan, an international business, trade, and regulatory attorney and founder of the Kogan Law Group, P.C., a multidisciplinary legal services firm assisting U.S. and non-U.S.-based public and private enterprises. He also directs the Princeton, N.J.-based Institute for Trade, Standards and Sustainable Development, Inc. (ITSSD).

INTRODUCTION

The U.S. Clean Water Act’s (“CWA”) explicit objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” by inter alia “eliminat[ing]…the discharge of pollutants into the navigable waters.” And the CWA’s explicit policy in achieving that goal is to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, and to plan the development and use […] of land and water resources.” See 33 U.S.C. §§ 1251(a)(1) and 1251(b).

In Sackett v. Environmental Protection Agency (Sackett-II), 598 U.S. ___, 143 S. Ct. 1322 (2023), the U.S. Supreme Court opinion authored by Justice Alito determined that the CWA’s “geographical reach” has “outer boundaries” subject to Congress’s Commerce Clause navigation power limitation. Consequently, the federal government lacks CWA § 404 jurisdiction over intrastate waters and adjacent wetlands having a continuous surface connection with them merely because activities engaged in within such waters may affect interstate commerce. Sackett-II, 143 S. Ct. at 1329-30; 1333, n.8; 1334, n.10 (majority op). In Sackett-II, the Court rejected as invalid, on both statutory and constitutional grounds, the Seattle, Washington-based Region 10 Office of the Environmental Protection Agency’s application of the ‘significant nexus’ test to determine that Mr. and Mrs. Sackett’s Priest, Idaho property contained wetlands constituting federal jurisdictional wetlands subject to the permitting requirements of CWA § 404 (33 U.S.C. § 1344).

This Working Paper extensively documents how, despite the Court’s May 2023 Sackett-II decision, the U.S. Department of Justice (through its Environment and Natural Resources Division (“ENRD”)), the U.S. Army Corps of Engineers (“USACE”), the EPA, and other agencies with environmental functions continue to quietly rely on a notion of “plenary” power under the Commerce Clause to justify ongoing jurisdiction over intrastate lakes, rivers, and streams as “waters of the United States” (“WOTUS”).

Section 1 describes the Sackett-II majority and concurring opinions. It argues that Justice Thomas’ concurrence, which accepted the majority opinion in full while also supplying critical historical color as well as key limiting principles, should be read as a binding part of the majority opinion. Section 2 describes instances of federal government non-compliance with Sackett-II. It opens with a case study of USACE actions pre- and post-Sackett-II related to wetlands dispute with a landowner in Utah. Section 2 next evaluates several federal rules and related documents, in addition to specific agency assertions of WOTUS jurisdiction over entirely intrastate water bodies, that are no longer valid and yet remain in force and publicly available. Finally, Section 2 explains how some in the federal bureaucracy continue to advance “plenary” power over certain water under a sweeping interpretation of the Commerce Clause’s language related to commerce with “the Indian tribes.” The Working Paper concludes with three suggested ways to address federal agencies’ ongoing defiance of the Supreme Court.

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