The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (together, the Agencies) issued a straight-to-final-rule revised definition of “waters of the United States” (WOTUS) on August 29, 2023. This rulemaking is in response to the recent Supreme Court decision in Sackett v. EPA invalidating provisions of the Agencies' recent redefinition of WOTUS under the Clean Water Act (CWA) (2023 Rule). The August 29, 2023 rule is effective immediately.

In Sackett, the Supreme Court concluded the Agencies’ significant nexus standard was inconsistent with the CWA. The Supreme Court also differed in its definition of “adjacent” wetlands. To conform to Sackett, the Agencies:

1. revised the 2023 Rule to remove the significant nexus standard; and
2. amended the definition of “adjacent” for wetlands.

This means waters are now no longer jurisdictional under the CWA as based on the significant nexus standard, and wetlands are no longer “adjacent,” or jurisdictional, simply because they are “bordering, contiguous, or neighboring” or “separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes and the like.” In order to qualify as an “adjacent” wetland, waters must now be relatively permanent, standing, or continuous flowing bodies of water, have a continuous surface connection to those waters, or separately qualify as jurisdictional.

This Rule also removed “interstate wetlands” as jurisdictional solely because they cross state boundaries. The remainder of the 2023 Rule remains unchanged. See our prior alert to determine whether the 2023 Rule has implications for your project or operation. However, the definition of WOTUS is far from settled. The 2023 Rule is still enjoined from taking effect in 27 states. 

The Agencies will hold a stakeholder meeting to discuss these updates to WOTUS on September 12, 2023, at 3 p.m. Eastern Time.

For questions regarding the implementation of existing jurisdictional determinations or permits issued under the significant nexus test, please contact the listed authors of this alert. Finally, due to the now complete WOTUS definition, U.S. Army Corps districts are rescinding their self-imposed pause on jurisdictional determinations. Project proponents may now receive jurisdictional determinations in line with the new rule going forward.

Beveridge & Diamond’s Water and Infrastructure and Project Development and Permitting Practices help clients in numerous industries achieve compliance with the ever-changing regulatory landscape thereby reducing cost and risk to operations. B&D’s water lawyers represent clients in major cases involving emerging issues under the Clean Water Act and other water quality laws. For more information on this development, please contact the authors.