Clean Water Act regulatory update: Revised definition of "Waters of the United States"
In response to the May 25, 2023 US Supreme Court decision on Sackett v. EPA, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) issued the “Revised Definition of 'Waters of the United States'; Conforming” (Conforming Rule) on September 8, 2023. The Conforming Rule updated the recently published Revised Definition of Waters of the United States (WOTUS) to rely solely on the relatively permanent standard to determine if a feature is jurisdictional, removing the significant nexus standard. The Conforming Rule also revised the definition of “adjacent” to only include wetlands “having a continuous surface connection,” reducing what was considered adjacent from previous definitions.
Overall, these changes to the definition of WOTUS represent a reduction in federal jurisdiction over aquatic resources. This is especially true in drier portions of the country, such as the southwest, where many resources do not support sufficient flow to be considered relatively permanent. This reduction in federal jurisdiction will reduce the need for federal permits for impacts to WOTUS, such as dredge and fill permits under Section 404 of the Clean Water Act. Some states, such as California, Washington, Oregon, and Pennsylvania, have state water regulations that will fill part or all of this gap in protection of resources.
However, it is important to note that this reduction in federal jurisdiction will have consequences outside of the aquatic resources permitting environment. Historically, many projects have relied on using their Section 404 permitting as a nexus to participate in the more streamlined Endangered Species Act (ESA) Section 7 permitting process. This process is only available to federal agencies, so private development is only able to access this process if a federal agency has discretionary authority over the project, as the USACE does in the Section 404 permitting process.
Without this federal nexus, private projects that will potentially impact a federally threatened or endangered species must consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service under Section 10 of the ESA to develop a Habitat Conservation Plan. While the Section 7 process may be onerous on more difficult or impactful projects, it is generally regarded as a more streamlined approach to addressing impacts under the ESA. This time and cost savings won’t be available to projects that no longer require a Section 404 permit with this reduction in federal jurisdiction.
While the extent of federal jurisdiction over wetlands and other waters was reduced by the Conforming Rule, the USACE issued a memo on March 22, 2024 (in response to the Sackett v. EPA decision) clarifying that all waters within the United States have value, regardless of whether they fall under federal jurisdiction. This memo identifies ways in which USACE staff can use existing authorities to meet the goals and objectives set forth in the Clean Water Act to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.
