“Waters of the United States” Definition Remains Turbid

Just before the new year, on December 30, 2022, the United States Environmental Protection Agency (EPA) unveiled its final “Revised Definition of ‘Waters of the United States’” rule. This rule revises the regulatory definition of “Waters of the United States” under the Clean Water Act (CWA).  

Those familiar with this process know that over the last decade this definition has been subject to multiple changes, legal challenges, and debate. In fact, according to the EPA, there are currently 14 cases pending that challenge one of the three most recent changes to the definition of “Waters of the United States”. One of these cases is Sackett v. EPA, which is currently awaiting hearing by the United States Supreme Court.  

The EPA’s new 2022 rule would replace its most recent 2020 rule, which itself drastically altered the EPA’s prior 2019 rule. One of the primary issues is the definition of wetlands, and whether a wetland falls under CWA jurisdiction as a “Water of the United States”. This very question is at issue in the pending Sackett case. To answer this question, the new EPA rule would rely on the “significant nexus standard” which allows for waters to fall under CWA jurisdiction if there is a “significant nexus” between the wetland and a navigable waterway.

As pointed out by amici in the Sackett case, including the National Stone Sand and Gravel Association and The American Road and Transportation Builders, the significant nexus standard often does not clearly answer the question, changes depending on the individual analyzing the specific wetland, leads to lengthy and expensive permitting processes, and creates compliance confusion with other government entities, such as the Army Corps of Engineers.

The timing of this latest revision is particularly interesting given the still undecided Sackett case; the judgment in that case could require the EPA to revise its rule yet again. 

Everview continues to monitor the EPA rule, as well as Sackett and can help clients determine how these legal changes impact project permitting.