On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (“Corps”) announced a pre-publication version of their final rule [1] (“Conforming Rule”) to amend their January 2023 Revised Definition of “Waters of the United States” (WOTUS) [2] (“the 2023 Rule”) in response to the U.S. Supreme Court’s recent decision in Sackett v. EPAon May 25, 2023 [Sackett II] [3] that invalidated key portions of the 2023 Rule. The Conforming Rule was issued without customary notice-and-comment rulemaking proceedings based on the cited need to conform the 2023 Rule’s definition of WOTUS to the Sackett II decision. EPA’s press release discussing this final conforming rule is available here.[4] 
 
EPA and the Corps have noted that the amendments to the 2023 Rule only address the portions that rule deemed invalid under the Sackett II decision. The Conforming Rule removes the significant nexus test as a means of identifying tributaries and other waters as federally protected. The new rule also has revised the definition of WOTUS to remove references to waters that “significantly affect” interstate waters and references to interstate wetlands and streams. It also revised the adjacency test to mean “having a continuous surface connection.”
 
No changes were made to the 2023 Rule related to its impacts on traditional navigable waters, territorial seas, and impoundments. Similarly, the Conforming Rule made no changes to the eight specific exclusions from the definition of WOTUS identified in the 2023 Rule. These WOTUS exclusions include: 1) prior converted cropland; 2) waste treatment systems, including treatment ponds or lagoons; 3) ditches that do not carry a relatively permanent flow of water; 4) artificially irrigated areas; 5) artificial lakes or ponds; 6) artificial reflecting pools or swimming pools; 7) water filled depressions; and 8) swales and erosion features with low volume, infrequent, or short duration flow.
 
As always, how the EPA and Corps apply the Conforming Rule will be the key for potentially affected parties. There are already concerns being raised about what is not considered in the new WOTUS rule—i.e., the claims that the 2023 Rule failed to respect private property rights and the limited scope of the Clean Water Act. 
 
Despite anticipated objections, the EPA says the Corps will resume issuing jurisdictional determinations for projects under the Clean Water Act to help provide certainty to project owners and developers whose projects may affect wetlands, streams, and other waters subject to Clean Water Act jurisdiction.
 

[1] https://www.epa.gov/wotus/amendments-2023-rule

[2] https://www.epa.gov/system/files/documents/2023-01/Revised%20Definition%20of%20Waters%20of%20the%20United%20States%20FRN%20January%202023.pdf

[3] Sackett v. Environmental Protection Agency, 598 U.S. 651 (May 25, 2023).

[4] https://www.epa.gov/newsreleases/conform-recent-supreme-court-decision-epa-and-army-amend-waters-united-states-rule
 
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.