For almost 50 years, the definition of “Waters of the United States” (WOTUS) has been one of the most contentious and legally unstable elements of federal environmental policy. Successive administrations have attempted to expand or contract federal authority under the Clean Water Act, often pushing well beyond what Congress authorized and what the Constitution permits. The result has been regulatory whiplash, legal uncertainty for landowners and energy producers, and an ever-growing body of litigation.
Against that backdrop, the Institute for Energy Research took a proactive step.
IER’s Petition to EPA: Re-Anchoring WOTUS in Law
On February 18, 2025, IER formally petitioned the Environmental Protection Agency to revise its definition of WOTUS to conform to the Clean Water Act’s text, structure, and constitutional limits — particularly as clarified by the Supreme Court in Sackett v. EPA. The petition was straightforward in its premise: federal water jurisdiction must be grounded in navigability, not ecological abstractions or expansive theories of “connectedness” untethered from the statute.
IER argued that decades of regulatory overreach stemmed from ignoring Congress’s deliberate choice of language — specifically, the terms “navigable” and “of the United States.” Those words are not surplusage. They reflect the limits of Congress’s Commerce Clause authority and the federal government’s traditionally narrow role in regulating waters that serve as channels of interstate commerce.
EPA’s Proposed Rule: A Welcome Course Correction
EPA’s recently proposed WOTUS rule represents a significant departure from prior expansionist frameworks and is largely aligned with the core principles outlined in IER’s petition. In particular, the proposal:
- Re-centers federal jurisdiction on traditionally navigable waters and relatively permanent waters connected to them
- Rejects open-ended ecological tests untethered from statutory text
- Acknowledges the Supreme Court’s insistence on clear limits to federal power, including Sackett’s “indistinguishability” requirement for wetlands
This shift did not occur in a vacuum. Years of adverse court rulings, growing skepticism of agency overreach, and sustained pressure from legal scholars and policy organizations — including IER — have made clear that the old WOTUS playbook was unsustainable. While EPA deserves credit for responding to these realities, the proposal reflects arguments that IER and others have advanced consistently and publicly for years.
IER’s Comments: Supportive, but Focused on Getting It Right
IER’s comments on the proposed rule express strong support for the agencies’ overall direction. At the same time, the comments emphasize that restoring the rule of law requires precision, not halfway measures.
IER urged EPA and the Army Corps of Engineers to:
- Fully give effect to Sackett’s requirement that wetlands be practically indistinguishable from adjacent navigable waters to fall under federal jurisdiction
- Eliminate vague concepts such as “wet season” connections, which appear nowhere in the Clean Water Act and invite renewed regulatory creep
- Clearly disavow prior agency interpretations that treated constitutional limits as optional or secondary considerations
These recommendations are not calls for weakening environmental protection. They are calls for respecting the limits Congress imposed and ensuring that environmental policy is made by lawmakers — not improvised by regulators.
A Rare Moment of Regulatory Alignment
It is uncommon for a federal agency proposal to align so closely with a petition filed by a policy organization just months earlier. That alignment reflects both the strength of the legal arguments and the growing recognition that the WOTUS debate has gone too far for too long.
If finalized with modest but important refinements, EPA’s proposed definition could provide something that has been missing for years: a durable, legally defensible framework that protects truly navigable waters while respecting private property rights, state authority, and constitutional boundaries.
IER will continue to engage constructively in this process, with the goal of ensuring that federal environmental regulation is lawful, limited, and predictable. On WOTUS, the path forward is clearer than it has been in a long time — and that is a welcome development.
