On May 25, 2023, the Supreme Court of the U.S. (SCOTUS) issued a ruling in the Sackett v. EPA case, stating only wetlands with a continuous surface connection to large rivers, lakes, and streams are eligible for federal protection. On August 29, 2023, the US Environmental Protection Agency (EPA) amended the 2023 Clean Water Rule to conform with the SCOTUS Sackett decision.
Why the 2023 Rule Amendment Matters
The amendment removes the “significant nexus” standard and narrows the definition of “adjacent” to mean “having a continuous surface connection.”
- This reduces the jurisdiction of the US Army Corps of Engineers (USACE) under the Clean Water Act, but still allows for regional variation in interpreting the amended rule.
The SCOTUS ruling in Sackett v. EPA rejected the EPA’s claim that “Waters of the United States,” as defined in the CWA, includes wetlands with an ecologically significant nexus to traditional navigable waters.
- The Supreme Court held that only those wetlands with a continuous surface connection to traditional navigable waterways would be afforded federal protection under the CWA.
Under the Supreme Court ruling, to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that:
- The adjacent body of water constitutes Water[s] of the United States (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and
- The wetland has a continuous surface connection with that water, making it difficult to determine where the water ends, and the wetland begins.
Because parts of the existing WOTUS rule are inconsistent with the SCOTUS definition, the EPA and USACE issued new guidance for interpreting the Sackett decision.
The amended rule emphasizes the “relatively permanent” standard.
- This standard requires evaluation of surface water flows (from any source) to determine if they are continuous year-round or seasonally versus only present in direct response to precipitation.
The Bottom Line on WOTUS
The Amended 2023 WOTUS Rule replaces the current working understanding of WOTUS; however, the 2023 WOTUS Rule is currently legally enjoined in approximately half of U.S. states (see map).
- In these states (shown in blue), a pre-2015 regulatory interpretation consistent with Sackett is being utilized.
Dudek’s wetlands and permitting experts can help you interpret the Amended 2023 Rule or the Pre-2015 Rule as applicable in your state.
The current definition retains all aspects of the 2023 rule, except it removes the “significant nexus” standard and narrows the definition of “adjacent” to mean “having a continuous surface connection.” You can review the EPA’s Summary Fact sheet for details on the current definition of WOTUS and what has been changed/retained from the 2023 rule.
Changes have been made to the definitions of interstate waters, tributaries, adjacent wetlands, and additional waters. View the EPA’s Summary Fact Sheet for more information.
Depending on which state your project is in, AJD and PJDs are being processed using either the 2023 Rule Amendment interpretation or the pre-2015 regulatory regime consistent with Sackett.
Projects with valid permits can proceed with work activities covered under their permits. USACE staff will need to provide further guidance if your permit expires before work begins and additional information beyond a request for a permit amendment is required.
State and local agencies may still require permits for projects with impacts to state- or locally regulated aquatic resources.
Our project experience and understanding of the federal regulatory process, as well as our strong relationships with regional USACE staff allow us to identify strategies to move projects through the permitting phase.
We can provide you with recommendations and options that are catered to your specific project based on the most up-to-date federal guidance available so that any delays to the project schedule are minimized.
Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, the U.S. territories, and the District of Columbia.
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming
Contact us for more information about how the Sackett v. EPA ruling and 2023 Amended Rule may affect your project.