By Jim Dickson,
Counsel,
Adams and Reese, LLP
For the fourth time in eight years, a president’s administration has issued a new “waters of the United States” (WOTUS) definition. This is the second definition published by the Biden administration, and makes significant changes to the rule published at the end of 2022.
As we predicted, this rule was displaced by the decision in Sackett v. EPA, which was published by the United States Supreme Court in May of this year. The new rule, published on Aug. 28 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, revised the definition of “waters of the United States” to conform with the Sackett decision, which invalidated a portion of their earlier rule.
The regulatory framework of the EPA and the Army Corps now defines “waters of the United States” as waters that are “relatively permanent, standing or continuously flowing bodies of water.” Additionally, the rule revises adjacent wetlands as “having a continuous surface connection” to bodies of waters of the United States. The significant nexus standard has been removed.
The impact of this new rule remains to be seen. While, in theory, it tries to align the regulatory definition with the judicial interpretations of the statute, in practice, it may prove difficult to follow. Many questions remain as to how the Sackett decision and now the corresponding rule will be applied to water bodies and wetlands.
One thing we can count on: the new rule will almost certainly face litigation challenges. Stay tuned for the next installment of the Waters of the United States saga.
For more information about Waters of the United States, visit https://tinyurl.com/2p9ah88d.
