The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) issued a final rulemaking on Aug. 29, 2023, that revised the definition of “Waters of the United States” (WOTUS). The WOTUS Rule amends the Biden Administration’s January 2023 “Revised Definition of ‘Waters of the United States’” and was issued to conform the definition of “WOTUS” to the U.S. Supreme Court (SCOTUS) decision in Sackett v. Environmental Protection Agency.
In the Sackett case, SCOTUS rejected the Biden Rule’s broad expansion of the Clean Water Act’s (CWA) geographical regulatory reach under the “significant nexus” test. However, the WOTUS Rule does not reflect Sackett’s full scope. In Sackett, the majority opinion rejected the Biden Rule and per Sackett, the CWA’s “use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes.” The Court stated plainly that “the CWA extends to only wetlands that are as a practical matter indistinguishable from waters of the United States.” Thus, there is still uncertainty regarding how the agencies will ultimately implement the revised definition.
Specifically, the WOTUS Rule defines “waters of the United States” to include the following:
- Traditional navigable waters, the territorial seas and interstate waters (Jurisdictional Waters) impoundments of Jurisdictional Waters (Jurisdictional Impoundments).
- Relatively permanent, standing or continuously flowing tributaries to either Jurisdictional Waters or Jurisdictional Impoundments (Jurisdictional Tributaries).
- Wetlands having a continuous surface connection to either Jurisdictional Waters, Jurisdictional Impoundments or Jurisdictional Tributaries (Jurisdictional Wetlands).
- Relatively permanent, standing or continuously flowing intrastate lakes and ponds with a continuous surface connection to (but are not themselves) a Jurisdictional Water, Jurisdictional Impoundment, Jurisdictional Tributary or Jurisdictional Wetland.
As with the Biden Rule, the WOTUS Rule defines the term “wetland” to mean “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Consistent with Sackett, the WOTUS Rule requires jurisdictional wetlands to have a continuous surface connection to another jurisdictional water. However, the WOTUS Rule limits the impact of Sackett by failing to incorporate its express holding that the CWA extends to only those wetlands that are, as a practical matter, indistinguishable from jurisdictional waters, impoundments or tributaries.
The WOTUS Rule appears to be as narrow an application of the Sackett decision as possible. While parroting back certain language of the Supreme Court, the WOTUS Rule fails to truly define what constitutes a “relatively permanent” waterbody or a “continuous” connection between a wetland and such as water. NAR has joined lawsuits in Texas and North Dakota to stop the implementation of the current WOTUS Rule.
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