Federal Agencies Publish New WOTUS Rule after Supreme Court Ruling

September 28, 2023 | Kitt Tovar Jensen

On September 8, 2023, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) published a revised definition of “waters of the United States” or WOTUS. 88 FR 61964. To conform with the U.S. Supreme Court’s recent Sackett v. EPA, 143 S. Ct. 1322 (2023) ruling, the agencies made various changes including the removal of the “significant nexus” standard and amending the definition of “adjacent.” The new rule went into effect September 8, 2023. Because the revision was required to make the Rule comply with the Sackett decision, no notice and opportunity for public comment was necessary.

Previous Litigation and Regulation

The jurisdictional boundaries of the Clean Water Act (CWA) have long been disputed. The CWA applies to all navigable waters or “Waters of the United States” (WOTUS). 33 U.S.C. §§ 1344, 1362. The CWA does not define WOTUS; instead, the EPA and Army Corps have promulgated rules defining WOTUS several times, most recently in January 2023 (2023 Rule). The meaning of WOTUS is vital to determine whether the CWA applies.

The 2023 Rule expanded the federal jurisdictional reach of the CWA by codifying the “significant nexus” test created by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006). Thus, adjacent wetlands which “either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of [traditional navigable waters, the territorial seas, or interstate waters]” fell within CWA jurisdiction. The 2023 Rule set forth a list of hydrological and ecological factors to determine whether the waters had a material influence.

The 2023 Rule maintained the previously used definition of “adjacent” as “bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are ‘adjacent wetlands having a continuous surface connection.’”

While the 2023 Rule was not directly under review in Sackett v. EPA, the Court did invalidate certain provisions of it. Specifically, the Supreme Court narrowed the WOTUS definition finding that adjacent wetlands must have a “continuous surface connection” with “traditional interstate navigable waters” to be subject to the CWA. The Court also ruled that the significant nexus standard was inconsistent with the text and structure of the CWA.

2023 Conforming Rule

In response to Sackett, the EPA and Corps published the “Revised Definition of ‘Waters of the United States’; Conforming” rule (Conforming Rule). Under the Conforming Rule, five categories of jurisdictional WOTUS exist:

  • Traditional navigable waters, territorial seas, and interstate waters
  • Impoundments
  • Tributaries
  • Adjacent Wetlands
  • Intrastate lakes and ponds not identified in the first four categories

40 C.F.R. § 120.2(a); 33 C.F.R. § 328.3(a). One significant change in Conforming Rule includes the removal of the “significant nexus” standard. The Sackett Court concluded the CWA’s use of “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” Additionally, the Court concluded that wetlands are part of WOTUS when “there is no clear demarcation between ‘waters’ and wetlands.” 143 S. Ct. at 1344 (2023).

As a result, the Conforming Rule provides that adjacent wetlands must have a “continuous surface connection” to a relatively permanent body of water connected to traditional interstate navigable waters. 40 C.F.R. § 120.2. Because the 2023 Rule defined “adjacent” wetlands to include wetlands separated from other waters, the agencies amended the definition of “adjacent” in the Conforming Rule to simply mean “having a continuous surface connection.”

Of note, the Conforming Rule does not amend any of the listed exceptions to WOTUS, such as Prior Converted Cropland, which were previously in effect. The agencies released a fact sheet explaining the changes made to the 2023 Rule.