09/07/2023

Redefining The Waters Of The United States

Co-Authored By: Steve Case and Neil McCarthy (Graduate Clerk)

On August 29^th, the Environmental Protection Agency and the United States Army Corps of Engineers (the “Agencies”) took an important first step to restore consistency and uniformity to the swirling realm of the Waters of the United States (“WOTUS”). The Agencies released a pre-publication notice of a final rule to amend the definition of WOTUS (the “Amended Rule”) following the recent Sackett v. EPA decision; which left the field in limbo by rejecting the “significant nexus test.” The “significant nexus test” had been a key part of the final rule released by the Agencies earlier this year (the “January 2023 Rule”) before the Sackett decision. The Amended Rule will become effective immediately upon its publication in the Federal Register.

Where We Are Now

Under the Amended Rule, WOTUS will include:

• Traditional navigable waters;
• The territorial seas;
• Interstate waters (not including interstate wetlands);
• Impoundments of water that would otherwise be WOTUS (not including the Exclusions listed below);
• Tributaries of any of the above categories that are relatively permanent, standing, or continuously flowing bodies of water;
• Wetlands with a continuous surface connection with any of the above categories; or,
• Intrastate lakes and ponds that are relatively permanent, standing, or continuously flowing, with a continuous surface connection to traditional navigable waters, territorial seas, or interstate waters and their tributaries.

The Amended rule retained the traditional exclusions from the definition of WOTUS (the “Exclusions”) and these are listed below:

• Prior converted cropland,
• Waste treatment systems,
• Ditches,
• Artificially irrigated areas,
• Artificial lakes or ponds,
• Artificial reflecting pools or swimming pools,
• Waterfilled depressions, and
• Swales and erosional features.

Clearly, with the significant nexus standard set aside, the new challenge will be to determine what will satisfy the “relatively permanent, standing, or continuously flowing” standard that appears to be foundational to jurisdictional determinations going forward. The Amended Rule is silent regarding how this determination will be made and there is sure to be a great deal of questions from stakeholders of all stripes. The Agencies will doubtlessly be forced to provide further guidance on this important part of the rule.

Next Steps

This Amended Rule will not be the final word in the matter of WOTUS. Due to ongoing litigation, jurisdictional determinations in the states, in which enforcement of the January 2023 Rule has been enjoined,^[1] will continue to be determined according to the pre-2015 regulatory regime and the Sackett decision. There also remains a significant likelihood that this Amended Rule will be challenged, which could interfere with its implementation and continue the balkanization of WOTUS in the United States.

Regardless, the Agencies plan to host a series of stakeholder meetings, provide trainings to facilitate consistent determinations, and publish guidance documents to inform the implementation of this Amended Rule, all of which will provide important clarifications and better inform our understanding of the full scope of the impact of this rule.

Attorneys at McGrath North are prepared to assist you in navigating the constantly evolving regulatory landscape.