The U.S. EPA and Army Corps of Engineers recently issued a new final rule amending their Jan. 2023 definition of "Waters of the United States" (WOTUS), which outlines which waters fall under the federal purview of the Clean Water Act.   

The new (new) rule is intended to conform the WOTUS definition to the May 25, 2023 Supreme Court decision in Sackett v. EPA, which limited the scope of federal jurisdiction to “relatively permanent bodies of water” and wetlands with a “continuous surface connection” to such waters.   

To accomplish this, the updated rule removes the longstanding “significant nexus” test that was roundly rejected by the Sackett decision, and revises the test for “adjacent” wetlands to comport with the “continuous surface connection” language from the Supreme Court.   

The rule does not, however, provide additional clarity with respect to how the agencies intend to implement terms such as “relatively permanent” and “continuous” when issuing jurisdictional determinations.  Nor does the rule alter the WOTUS exclusions finalized by the Biden administration in its Jan. 2023 rule.  Those exclusions do not include the express carve-outs for stormwater control features that had been contained in previous WOTUS iterations, but do maintain the established exemption for “waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act.”  

Interestingly, the agencies are taking the position that there is “good cause” under the Administrative Procedure Act (APA) to issue the updated rule without opportunity for public notice and comment, and to make it immediately final upon publication in the Federal Register, which has yet to occur.   

According to EPA and the Corps, typical notice and comment procedures are “unnecessary,” because, in ensuring the WOTUS definition conforms to the Supreme Court’s Sackett decision, the amendments “do not involve the exercise of the agencies’ discretion,” and “a notice and comment process would neither provide new information nor inform any agency decision-making.”  

EPA and the Army Corps will be holding webinars on September 13 and September 20 to provide the public with additional information on the updated rule, as well as the status of the myriad litigation throughout the country challenging aspects of several WOTUS rulemakings.     

Legal experts will also be discussing the latest WOTUS developments at NACWA’s 2023 National Clean Water Law & Enforcement Seminar in Asheville, N.C.  Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions or to commiserate.