New WOTUS Rule Expected Post-Sackett

In brief

The United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE) announced their intent to amend the final “Revised Definition of ‘Waters of the United States’” rule, published on January 18, 2023, consistent with the U.S. Supreme Court’s May 2023 decision in Sackett v. Environmental Protection Agency. The agencies stated that they intend to issue a final, revised rule by September 1, 2023.

In detail

In Sackett v. Environmental Protection Agency, the U.S. Supreme Court held that “Waters of the United States” (WOTUS), in the context of the Clean Water Act, includes only to wetlands that have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and ‘wetlands’.”

The Sackett ruling is a significant departure from the current WOTUS rule, which the EPA and ACOE just finalized in January 2023. That rule, which followed more than a dozen cases litigating prior WOTUS rules, including the 2015 Clean Water Rule, the 2019 Repeal Rule, and the 2020 Navigable Waters Protection Rule, relied on two standards to determine whether wetlands are jurisdictional WOTUS: the “relatively permanent” standard and the “significant nexus” standard.

Under Sackett, the forthcoming new WOTUS rule will reach a far narrower range of wetlands than the rule adopted in January, such that some development projects that would have required federal permits under the prior rule will not need federal permits going forward. In particular, development projects that impact isolated wetlands, ephemeral streams, and roadside ditches will likely no longer require federal Clean Water Act permits.

The EPA and ACOE anticipate issuing a final, revised rule consistent with Sackett by September 1, 2023.

The Sackett decision can be viewed here.