The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) announced an amended rule on August 29, 2023, defining waters of the United States (WOTUS) that conforms with the U.S. Supreme Court’s decision in Sackett v. EPA issued on May 25, 2023.
As stated in EPA’s factsheet, the amended rule:
removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category.
The definition of WOTUS has been debated since the adoption of the Clean Water Act (CWA) in 1972. Over several decades, regulatory agencies and courts, including the U.S. Supreme Court, have made numerous efforts to interpret the jurisdictional reach of WOTUS under the CWA. The conforming rule will become effective upon publication in the Federal Register. Updates to the rule status are available here: Rule Status and Litigation Update page. The EPA will offer additional information through a recorded webinar on September 12, 2023.
SWCA Can Help
If your project has the potential to impact aquatic resources (e.g., wetlands, streams, lakes, etc.) it is important to consider not only the federal jurisdictional status of the aquatic resources in question but also state and local regulations. Many states and localities across the United States have state regulations that are implemented in addition to CWA regulations. These regulations may require additional permitting and or physical setbacks from aquatic resources.
For more information, you can read the amended rule at EPA.gov. If you have questions about how this decision affects your project, please reach out to your SWCA project manager or bonnie [dot] rogers [at] swca [dot] com (subject: New%20WOTUS%20Regulations) (Bonnie Rogers), marcus [dot] hope [at] swca [dot] com (subject: New%20WOTUS%20Regulations) (Marcus Hope), rwaldron [at] swca [dot] com (subject: New%20WOTUS%20Regulations) (Russell Waldron), or erica [dot] gaddis [at] swca [dot] com (subject: New%20WOTUS%20Regulations) (Erica Gaddis).