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On Thursday, November 20th, the U.S. Environmental Protection Agency (U.S. EPA) and the Department of the Army (the Army) published in the Federal Register a Proposed Rule entitled Updated Definition of "Waters of the United States." This is the latest version of the definition in a decades-long series of U.S. Supreme Court decisions and changes in Administrations defining what constitutes wetlands subject to federal jurisdiction.
The publication starts the 45-day clock for the public to submit comments on the proposed redefinition. This rule determines the geographic scope of the U.S. Army Corps of Engineers' and the U.S. EPA's authority under the Clean Water Act to regulate bodies of water. This proposed redefinition of "waters of the United States" (WOTUS) is in response to the U.S. Supreme Court's May 25, 2023 decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023). The U.S. EPA and the Army under the previous Administration issued a final rule on September 8, 2023, on the heels of the Sackett decision to amend the definition of WOTUS. This Proposed Rule would replace that rule.
In particular, the Proposed Rule seeks to codify the Sackett Court's two-part test for determining what wetlands are subject to federal jurisdiction and regulation. In Sackett, the U.S. Supreme Court held that WOTUS include only wetlands that have a "continuous surface connection" to permanent WOTUS, meaning that the wetlands must (1) abut permanent bodies of water (such as oceans, lakes, and rivers); and (2) have surface water during the wet season.
If the Proposed Rule is finalized in its current form, many wetlands, especially isolated wetlands, will no longer fall under federal jurisdiction. Practically speaking, this means that fewer Federal Clean Water Act permits would be required for projects affecting wetlands. Importantly, permits will still be required for "isolated wetlands" as defined in Ohio law and regulations.
In a November 17 press release, the U.S. EPA touted the proposed limitations on wetlands that fall under the definition of WOTUS as an effort "to provide clarity and consistency to the continuous surface connection definition." The agency also explained that in addition to excluding isolated wetlands, the Proposed Rule would limit the scope of permafrost wetlands that are considered to have a "continuous surface connection." According to the U.S. EPA, the goal of redefining WOTUS is to "cut red tape and provide predictability, consistency, and clarity for American industry, energy producers, the technology sector, farmers, ranchers, developers, businesses, and landowners for permitting under the Clean Water Act."
If you would like to submit a comment, interested parties can do so here before January 5, 2026.
Calfee's Environmental lawyers are available to provide additional information or assistance dealing with wetlands, permitting and any other environmental issues or concerns.
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