United States: EPA Issues Final Rule Diminishing Federal Jurisdiction Over Wetlands

On Aug. 29, 2023, the U.S. EPA and Army Corps of Engineers (USACE) issued the final rule amending the definition of "waters of the United States" (WOTUS) under the Clean Water Act.¹ This revised definition follows the Supreme Court's May 25, 2023 decision in Sackett v. EPA, 598 U.S. __(2023), where the court determined that WOTUS must have a "continuous surface connection" to a "traditionally navigable water" to be subject to federal oversight.²

The new rule removes the "significant nexus" standard that served as the basis for the EPA's January 2023 WOTUS definition. Under the January 2023 definition, federal waters were any waters that had a significant impact on the chemical or biological integrity of a "traditionally navigable water."

Under the EPA's new WOTUS definition, a WOTUS is a relatively permanent, standing, or continuously flowing body of water that has an apparent surface connection to a "traditionally navigable water" to fall within federal purview. The new rule applies to wetlands and streams throughout the U.S. Although the Sackett opinion did not specifically reference streams, the EPA's new rule extends the "continuous surface connection" standard to streams, effectively removing non-permanent, ephemeral streams from federal jurisdiction.

The new rule was finalized on Tuesday, Aug. 29, 2023, without undergoing a public notice and comment period. The EPA and USACE employed the sparingly used "good cause" exception under the Administrative Procedure Act to bypass the public notice and comment process. Under this exception, federal agencies may forgo public comment when officials determine that a rule update is sufficiently urgent. In its press release issued on Aug. 29, the EPA stated that "...because sole purpose of this rule is to amend specific provisions of the 2023 Rule that are invalid under Sackett, the rule will take effect immediately."³ With the final rule issued, the USACE will resume processing jurisdictional determinations, which were paused after the Sackett ruling in May.

The new WOTUS definition will have a large impact on land development, farming, and manufacturing industries, reducing the scope of waters subject to federal oversight. Up to 63% of U.S. wetlands by acreage and around 1.2 million to 4.9 million miles of ephemeral streams could be removed from federal jurisdiction under the new rule, according to EPA officials. Environmental protection groups warn of the potential impacts of the new rule, noting that wetlands and streams that once served as storm and flood buffers will no longer exist.

Although the new WOTUS definition curtails the number of waters subject to federal jurisdiction, such waters may become subject to state and other local regulations. For more information on compliance with federal and state water permitting, please contact a member of Taft's Environmental practice group.

Footnotes

1 Revised Definition of "Waters of the United States," 88 Fed. Reg. 11, 3004 (Aug. 29, 2023) (to be codified at 33 C.F.R. Part 328 and 40 C.F.R. Part 120), available here.

2 For more information on Sackett v. EPA, please visit SCOTUS Opinion Narrows Waters Subject to Federal Regulation.

3 Press Release, U.S. Environmental Protection Agency, To Conform with Recent Supreme Court Decision, EPA and Army Amend "Waters of the United States" Rule (Aug. 29, 2023).

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