On Aug. 29, 2023, EPA and the U.S. Army Corps of Engineers (USACE) announced a new final rule amending the 2023 definition of Waters of the United States (WOTUS). The new rule constitutes the agencies' effort to address the recent U.S. Supreme Court ruling in Sackett v. EPA. Under the new rule, two primary changes were made:

1. The rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected; and

2. The new rule revises the adjacency test when identifying federally jurisdictional wetlands.

While many believe it is good news that the significant nexus test has been removed and that the wetland clarification has been made, the agencies could have gone further to reflect the Sackett v. EPA decision, protect private property rights, and provide much-needed clarity to stakeholders. Environmental groups, however, have been arguing that the agencies went too far, and that clean water is in jeopardy across the country due to this new final rule.

The changes will take effect immediately upon publication in the Federal Register. USACE will then resume issuing approved jurisdictional determinations that have been paused since the Sackett decision. The agencies plan to host virtual events to communicate the WOTUS changes, beginning with a public webinar by EPA on Sept. 12, outlining the latest WOTUS revisions. Conversations will continue within the Waters Advocacy Coalition, of which UEP is a member, regarding future litigation, agency implementation, congressional oversight and media coverage.

For additional information on this issue, contact Tom Hebert or Lauren Lurkins.