On August 29, 2023, the Environmental Protection Agency (EPA) announced its final Waters of the United States (WOTUS) rule.  The new WOTUS rule makes major changes to clarify which wetlands are protected under the Clean Water Act (CWA).  The new WOTUS rule is a direct response to the Supreme Court’s Sackett v. EPA decision, which held that in order for wetlands to be protected under the CWA there must be a “continuous surface connection” to a WOTUS.  

In January 2023, the Biden administration adopted a definition that mimicked a pre-2015 approach, which considered both the “significant nexus” standard, as well as a “relatively permanent” standard.  The January 2023 Rule aimed to broaden the definition of WOTUS after Trump-era revisions narrowing its scope.  The Sackett holding found that the “significant nexus” test did not comport with the Clean Water Act, forcing EPA to amend the WOTUS rule.  EPA removed the “significant nexus” test and redefined “adjacent” to mean “having a continuous surface connection.”

At first glance, these revisions appear to align with Sackett.  However, opponents continue to assert that even as amended the WOTUS rule is overly broad, unduly burdensome, and insufficiently certain.  Various industry and political groups have indicated another round of litigation is imminent.

EPA has already stated that, “If any part of the 2023 Rule as amended by this rule is stayed or invalidated, the agencies’ intent is to preserve its remaining portions to the fullest possible extent.”

In February, 23 states filed suit and obtained an injunction against the EPA over the Biden Administration’s January 2023 Rule.  In those states, the pre-2015 Rule remains in effect. 

Further, EPA elected to forego a notice and comment period and instead issue a final rule under the “good cause” exception of the Administrative Procedure Act.  In issuing new WOTUS rule as final, EPA stated that there is good cause for it to immediately finalize the rule as EPA determined such notice and opportunity for comment is unnecessary.  This decision is likely to be a subject of the anticipated litigation.

Our team will continue to track WOTUS related news and will provide updates as needed.