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The South Carolina Environmental Law Project and the ** community members and partner organizations listed below provide the following comments and recommendations on how federal agencies should implement the U.S. Supreme Court’s interpretation of “waters of the United States” (WOTUS) following Sackett v. EPA (2023), submitted at the request of the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps).
It is our position that the Clean Water Act imposes a duty on federal agencies to protect the nation's waters, including wetlands and tributaries that play crucial roles in the broader watershed and are vital to the health of our ecosystems, our communities, and future generations. This duty is especially urgent in light of climate change, increasing flood risks, and ongoing water quality crises that disproportionately affect low-income and historically marginalized communities.
Our comments and recommendations emphasize the significant impact that further deregulation following Sackett would have on South Carolina—a state made up of approximately 4.6 million acres of wetlands. Accordingly, we submit our concerns regarding restrictive interpretations of WOTUS that jeopardize South Carolina’s unique environmental characteristics and vital wetlands post-Sackett.
South Carolina has long recognized that wetlands “are valuable habitat for wildlife and plant species and serve as hydrologic buffers, providing for absorption of storm water runoff and aquifer recharge, and therefore, their destruction… must be avoided whenever possible.” The Clean Water Act (CWA, or the Act) contains similar language warning of the negative impacts wetland fill and overdevelopment has. 40 C.F.R. 230.41(b) (wetland fill may reduce “the system’s productivity” and “can degrade water quality by obstructing circulation patterns that flush large expanses of wetland systems” and may “change the wetland habitat for fish and wildlife”). Despite the broad understanding that wetland fill is bad for both wildlife and people, deregulation of WOTUS protections in order to free up land for development continue. We are fighting back—and it is both the mission and obligation of the EPA and the Corps to join us in protecting human health and the environment.
It is our position that the Sackett interpretation failed to properly consider the complex, dynamic nature of wetland systems. Many wetlands functionally affect the chemical, physical, and biological integrity of navigable waters without a surface-level connection. This could be through subsurface hydrology, intermittent flows, and/or seasonal flooding. Further, the Supreme Court’s decision in Sackett improperly rejected the history and purpose behind the Clean Water Act, decades long caselaw, and administrative rulemaking authority that is best addressed by the scientific and environmental community. Accordingly, we urge the EPA and the Corps to pursue the most expansive interpretation of WOTUS still permissible under Sackett, and to implement stringent protections through other statutory and regulatory avenues available.
The Clean Water Act’s core objective is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Act regulates the discharge of pollutants in the form of dredged or fill material into WOTUS. Furthermore, it establishes the National Pollution Discharge Elimination System for management by the EPA and authorizes the determination of jurisdictional wetlands for review by the Corps.
In accordance with the purpose behind the CWA, the Corps expanded the interpretation of WOTUS in 1975 to include “not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and non-navigable intrastate waters whose use or misuse could affect interstate commerce.” In practice, this allowed the Corps to extend its Section 404 jurisdiction over all “freshwater wetlands” that were adjacent to other WOTUS. The Corps reaffirmed this definition in 1977, explaining that wetlands are “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions… [t]hey generally include swamps, marshes, bogs and similar areas.”
This authority exercised by the Corps in defining WOTUS was later protected by the Supreme Court in Riverside Bayview Homes. In this case, the Court held that that deferring jurisdiction to the Corps in defining WOTUS was appropriate and that “the language, policies, and history of the [Act] compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States.’” In arriving at this holding, the Supreme Court looked to legislative history—including House and Senate reports—and evidence presented during congressional debates over the Act. Notably, and recognized by the Supreme Court in its ruling, “Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of ‘navigable waters.’”
Although the Riverside holding should have provided sufficient “clarity” on WOTUS, in 2006, the interpretation of WOTUS got murkier. Rapanos, a contentious plurality opinion, presented two alternative tests for determining what constitutes a WOTUS. Of the two, the “significant nexus” test best protected the principles and intent of the Clean Water Act; wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Justice Kennedy argued that the more restrictive “continuous surface connection” test presented in Rapanos was “without support in the CWA because limiting the statute to only standing water, or continuous flow, would limit the Corps’ and the EPA’s jurisdiction in a way that would make ‘little practical sense in a statute concerned with downstream water quality.’”
The plurality opinion of Rapanos left many courts and federal agencies unsure as to how to proceed in future wetland disputes and WOTUS determinations. Then, human health and the environment took another blow in 2023. After forty-five years of agency and judicial interpretation that protected wetlands, the Sackett ruling sharply curtailed the federal government’s authority under the Clean Water Act once again. The holding established that only wetlands with a “continuous surface connection” to traditional navigable waters are subject to federal jurisdiction. This narrow interpretation discarded the prior significant nexus test, which had previously allowed the EPA and Army Corps of Engineers to consider the broader hydrological and ecological impacts wetlands may have on downstream waters—even if they lacked a visible surface connection.
The Sackett ruling represents a dramatic departure from the standard practices established over nearly five decades of legislation and judicial interpretation of WOTUS. The ruling in Sackett unlawfully rejected the legislative history that bore the Clean Water Act in the first place. The purpose of defining “navigable waters” as “waters of the United States” was to give the CWA broad jurisdiction through its Commerce Clause power. Consequently, the Supreme Court rejected its own prior evidentiary findings that had motivated the Riverside Court to conclude that adjacent wetlands were within the scope of WOTUS. The Riverside Court reasoned that protection of aquatic ecosystems, as Congress recognized, “demanded broad federal authority to control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.’”
The consequence of Sackett was the loss of protections for at least 19 million acres of wetlands—effectively 80% of American streams and 50% of its wetlands—an area roughly the size of the entire state of South Carolina. The primary conclusion requiring wetlands to have a continuous surface connection “demonstrates a fundamental lack of understanding of how natural waters function and connect across space and time.” “[N]o prior agency rule, scientific report, opinion from a scientific agency, or Science Advisory Board recommendation” supports the notion that wetlands must have a continuous surface connection to traditionally navigable waters to be deserving of CWA protection.
The agencies have requested input on the following issues: 1) the scope of “relatively permanent” waters, 2) the “scope of continuous surface connection,” and 3) the scope of jurisdictional ditches. To determine whether a tributary is a WOTUS under Sackett, the agencies currently look to whether the tributary is a “relatively permanent water.” Characteristics such as flow regime, flow duration, seasonality can help to inform a definition of “relatively permanent,” ideally the most expansive interpretation allowable under Sackett. Further, an expansive interpretation would recognize that tributaries have been protected since 1899, and that congress expressed concerns that an unduly restrictive interpretations would have on wetlands during the drafting process of the Clean Water Act.
Although current guidance states that discrete features connecting a wetland to a traditionally navigable water is not a basis for treating a wetland as jurisdictional, there are lingering questions on what it means for a wetland to “abut” a jurisdictional water. As such, SCELP encourages the scientific community to instruct whether wetlands behind natural berms or other landforms would be considered “abutting,” and whether artificial flood control structures, pumps, and other features would remove a wetland behind the feature from Clean Water Act jurisdiction.
By signaling intent to redefine WOTUS, the Trump Administration is opening up already vulnerable wetlands to further deregulation in the name of “efficiency” and “consistency.” Should the Administration adopt an even more restrictive interpretation of Sackett, the United States could lose nearly 70 million acres of wetlands. We urge agencies to fully utilize the remaining authorities to protect waters and exercise their oversight responsibilities. Agencies should do this by ensuring that delegated programs are adhering to the legislative intent behind the CWA.
Further, agencies should seek to adopt a shared regulatory definition of WOTUS to provide consistency across agency interpretations. These interpretations should then be published to the public to increase transparency. The public must be informed of how the definitions are actually being implemented in jurisdictional determinations, permitting, and programs. After Sackett, agencies have fallen short of their obligation to provide the public with transparency. Without transparency, any attempts at increased “efficiency” and “clarity” are rendered useless.
South Carolina is already grappling with the intensifying effects of climate change, including stronger storms and rising sea levels. In this context, preserving wetlands becomes even more critical. These natural systems provide vital flood storage and storm buffering, acting as a first line of defense for coastal communities. Historically, wetlands have saved South Carolina hundreds of millions of dollars in flood damage and protected coastal communities during major weather events. By safeguarding wetlands, we can avoid the need for expensive, taxpayer-funded flood control projects in the future.
Further, in South Carolina, where historic patterns of racial segregation, industrial siting, and disinvestment have burdened Black and Indigenous communities with environmental hazards, the weakening of WOTUS is particularly troubling. Wetlands are vital for absorbing runoff and preventing contamination, and they help to naturally protect these communities from already disparate environmental conditions. For example, the Pine Island and Gullah Geechee communities along the coast rely on intact wetlands for cultural, economic, and physical resilience. Additional loss of federal protections would make these areas more vulnerable to industrial encroachment, sea level rise, and storm surge. Additionally, rural areas throughout South Carolina already experience disproportionate impacts from water pollution due to industrial agriculture and inadequate wastewater systems. Filling in the freshwater wetlands in these areas would devastate the natural environment and exacerbate already flood-prone regions of the state.
The Clean Water Act was designed to protect all our waters—not just the most visible ones. That mission cannot be fulfilled while sidelining the protections of wetlands and other waters that may not meet the narrow “continuous surface connection” criterion. Despite the Supreme Court’s restrictive interpretation in Sackett, the EPA and all relevant agencies maintain regulatory rulemaking authority. As such, they must resist any further rollbacks of protections for our nation’s vital wetlands and take every step within their authority to mitigate the damage done by Sackett. Science, equity, and environmental protection must remain at the center of water policy.
SCELP expects that this rulemaking process will be iterative, providing several opportunities for comment and listening. As proposed draft definitions are made available, we hope that there will be additional opportunities to engage with the agencies further. In the meantime, we request notification of all decisions made throughout this rulemaking process, including the scheduling of future comment periods and listening sessions. Thank you for your consideration of these important issues.
Note: This is a "living document" and may have slight edits up until the submission deadline on April 23, 2025.
