TOPEKA, KAN. ( Firm to Farm ) — For decades, federal agencies have repeatedly attempted to expand their regulatory authority beyond the boundaries established by Congress. Few areas demonstrate this tendency more clearly than the Environmental Protection Agency’s (EPA) interpretation of the phrase “waters of the United States” ( WOTUS ) under the Clean Water Act (CWA).
For farmers, ranchers, and rural landowners, the consequences have been substantial. Ordinary agricultural activities involving drainage, land clearing, construction, and improvements to farmland have sometimes triggered federal permitting requirements carrying significant compliance costs and potential civil and criminal penalties.
The Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency ,[1] substantially curtailed this regulatory expansion. But the litigation and regulatory maneuvering have continued. Recent developments in 2026 suggest that federal wetlands regulation may finally be moving toward a more predictable framework grounded in statutory text, the constitutional division of authority between the federal government and the states, and respect for private property rights.
Michael and Chantell Sackett purchased a residential lot near Priest Lake, Idaho, intending to construct a home. The EPA asserted that their property contained federally regulated wetlands and ordered them to stop construction and restore the property. The agency’s position rested on an expansive interpretation of federal jurisdiction that treated wetlands as regulated waters when they possessed a sufficiently significant ecological connection to traditional navigable waters. The Supreme Court rejected that approach.
Writing for the Court, Justice Alito explained that the CWA’s reference to waters of the United States encompasses relatively permanent bodies of water, such as streams, rivers, lakes, and oceans. Wetlands fall within federal jurisdiction when they have a continuous surface connection to an otherwise covered water, making the wetland practically indistinguishable from that water. The Court rejected the controversial “significant nexus” test, which had permitted federal regulators to assert jurisdiction based on ecological or hydrological relationships that were not necessarily apparent to a property owner.
The significance of Sackett extends beyond wetlands regulation. The decision reaffirmed an important principle of statutory interpretation that administrative agencies cannot enlarge their authority merely because doing so might advance a desirable regulatory objective. Congress writes the law. Administrative agencies implement it. That distinction is essential to the constitutional separation of powers.
On November 20, 2025, the EPA and the U.S. Army Corps of Engineers published a proposed rule intended to bring the regulatory definition of “waters of the United States” (WOTUS) into closer conformity with Sackett. [2] The proposal represented an effort to establish clearer jurisdictional boundaries and reduce uncertainty concerning the treatment of wetlands, tributaries, and other water features. It also attempts to distinguish federally regulated waters from features that should remain subject primarily to state and local authority.
The position of the proposed rule is that the CWA does not establish a general federal land-use regulatory system. Nor does it authorize federal agencies to regulate every location where water occasionally accumulates or flows. Rather, the statute regulates particular categories of waters within the scope of Congress’s legislative authority .[3]
An important development occurred in early September when the EPA and the Department of the Army announced a supplemental notice of proposed rulemaking seeking comments on additional alternatives for defining jurisdictional waters and wetlands. [4]
The proposal addresses three particularly important concepts: perennial waters, relatively permanent waters, and continuous surface connections as follows:
These proposals are significant because they attempt to translate Sackett‘s judicial standards into administrable regulatory criteria.
On September 3, 2026, the U.S. Court of Appeals for the Ninth Circuit issued an amended opinion in Inland Empire Waterkeeper v. Corona Clay Co. [5] The litigation involved alleged Clean Water Act violations associated with discharges into Temescal Creek in California. Following the Supreme Court’s decision in Sackett, the defendant challenged whether the creek qualified as a water of the United States.
The Ninth Circuit addressed whether the question of whether a waterbody qualifies as WOTUS under the CWA concerns the merits of a claim or the federal court’s subject-matter jurisdiction .[6] The court treated the issue as one of the merits rather than jurisdiction. It also recognized that Sackett materially changed the governing legal framework. Accordingly, the court concluded that a new trial was necessary to determine whether Temescal Creek qualified as a jurisdictional water under the standards established in Sackett. The court did not, however, decide whether Temescal Creek is subject to federal regulation.
The decision illustrates the continuing impact of Sackett on previously litigated disputes. It also highlights the difficulties associated with applying older judicial precedents concerning intermittent and seasonal streams after the Supreme Court’s rejection of expansive jurisdictional theories.
Note: For farmers and ranchers (and rural landowners), the lesson is important: earlier agency determinations and judicial assumptions about federal jurisdiction may require reconsideration under current law.
One persistent misconception in the wetlands debate is that limiting federal jurisdiction necessarily eliminates environmental protection. That proposition misunderstands our constitutional structure. The United States operates under a system of dual sovereignty. The federal government possesses enumerated powers, while states retain substantial authority over land use, water resources, and environmental protection.
The Clean Water Act itself recognizes this arrangement. 33 U.S.C. §1251(b), expressly acknowledges 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. Consequently, a wetland that falls outside federal jurisdiction is not necessarily beyond regulation. State wetlands statutes, drainage laws, water-quality requirements, and local land-use restrictions may continue to apply. The distinction is not between environmental protection and environmental destruction. It is between regulation authorized by Congress and regulation imposed without sufficient statutory authority. From a constitutional perspective, that distinction is indispensable.
The practical consequences of these developments deserve particular attention.
Because of ongoing litigation, the EPA continues to apply different regulatory frameworks in different states, subject to the Supreme Court’s decision in Sackett. Currently, the amended 2023 rule applies in 24 states, the District of Columbia, and U.S. territories, while the remaining 26 states operate under the pre-2015 regulatory framework as constrained by Sackett. [8]
The recent developments in wetlands regulation represent an important test of whether federal administrative agencies will adhere to the limits imposed by Congress and the Supreme Court.
The September 2026 supplemental proposal offers the possibility of greater regulatory clarity. The Ninth Circuit’s decision in Inland Empire shows that courts continue to grapple with the consequences of Sackett.
But regulatory certainty requires more than replacing one administration’s interpretation with another’s. It requires fidelity to statutory text, respect for private property rights, and recognition that the federal government does not possess unlimited aut