On August 29, 2023, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) released a revision to the definition of water of the United States (WOTUS) that significantly curtails the agencies’ authority to require permits for development or work in certain waters and wetlands.

Under the Revised WOTUS Rule, intrastate wetlands are jurisdictional only if they have a “continuous surface connection” to a traditional navigable water, impoundment, or a relatively permanent tributary to a traditional navigable water.[1]

This rule follows years of administrations batting around the definition of WOTUS. The U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency, 143 S. Ct. 1322 (2023) and the Revised WOTUS Rule finally bring clarity to the issue. The Revised WOTUS Rule will become a final rule and be effective when published in the Federal Register, which should happen in the next week.[2]

The Revised WOTUS Rule has two significant changes. First, it limits the extent of wetlands that are jurisdictional under the Clean Water Act (CWA).[3] Second, it eliminates the “significant nexus standard” under which waters that “significantly affect the chemical, physical or biological integrity of traditional navigable waters” were previously considered jurisdictional.[4]

Wetlands are no longer jurisdictional merely because they are “bordering, contiguous, or neighboring” to such waters.[5] In other words, wetlands are only jurisdictional if they have a continuous surface connection to a WOTUS. Additionally, wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like” are no longer “adjacent wetlands.”[6] Therefore, wetlands that are separated from a WOTUS by such barriers are not jurisdictional unless they have a “continuous surface connection” to a WOTUS.

The elimination of the significant nexus standard means that tributaries to navigable waters, wetlands adjacent to a WOTUS, and intrastate lakes and ponds are only jurisdictional if they are “relatively permanent, standing or continuously flowing bodies of water.”[7] Such waters are no longer jurisdictional if they “significantly affect the chemical, physical or biological integrity of traditional navigable waters.”[8]

The Court in Sackett also made clear that it is the Corps’ and EPA’s burden to demonstrate they have jurisdiction over wetlands.[9] Historically, the Corps and EPA have always required the applicant to demonstrate the agencies don’t have jurisdiction over a water or wetland on the applicant’s property. This change is not captured in the Revised WOTUS Rule, but it is a powerful reminder that the agencies cannot presume jurisdiction.

For the regulated community, such as farmers, developers, or businesses developing energy projects, the Revised WOTUS Rule means that wetlands that may have previously fallen within CWA jurisdiction may no longer be regulated under the CWA. With publication of the Revised WOTUS Rule, the Corps will resume processing requests for approved jurisdictional determinations.[10] This resumption of processing requests for approved jurisdictional determinations will be welcome news to projects that have had to wait for the last three months in regulatory limbo, uncertain whether their project would require a CWA Section 404 permit.

[1] EPA Pre-Publication Notice, Amendments to the “Revised Definition of ‘Waters of the United States’”, at pp. 10, 18-20 (Aug. 29, 2023) available at https://www.epa.gov/system/files/documents/2023-08/Pre-publication%20Version%20of%20the%20Final%20Rule%20-%20Amendments%20to%20the%20Revised%20Definition%20of%20Waters%20of%20the%20United%20States.pdf.at pp. 10, 18-20 (See proposed revision to 40 CFR § 120.2(a)(4) and 33 CFR § 328.3(a)(4)).

[2] Id. at pp. 2-4.

[3] Id. at pp. 10-11.

[4] Id.

[5] Id. at pp. 10-11, 18-20 (See proposed revision to 40 CFR § 120.2(c)(2) and 33 CFR § 328.3(c)(2)).

[6] Id. at pp. 7-8 (See proposed revision to 40 CFR § 120.2(a)(4) and 33 CFR § 328.3(a)(4)).

[7] Id. at pp. 10-11, 18-20 (See proposed revision to 40 CFR §§ 120.2(a)(3), (a)(4), and (a)(5) and 33 CFR §§ 328.3(a)(3), (a)(4), and (a)(5)).

[8] Id.

[9] Sackett v. Environmental Protection Agency, 143 S. Ct. at 1341.

[10] EPA Pre-Publication Notice, pp. 3-4.