This summer the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced plans to revise the 2023 waters of the United States (WOTUS) rule in response to the U.S. Supreme Court ruling in Sackett v. Environmental Protection Agency.

That revision is currently at the Office of Management and Budget for regulatory review ahead of its anticipated release on September 1st--most likely as a final rule, not a proposal. The agencies are not moving forward with approved jurisdictional determinations (AJD) in the interim; although AGC members in some districts have shared that permits will move ahead if project proponents assume all waters are jurisdictional, which could come at a significant cost.

AGC and its coalition allies have urged the agencies to move forward expeditiously with issuing AJDs, the pause of which is stalling critical infrastructure projects. The letter argues that “Sackett leaves no doubt that isolated water features, non-adjoining wetlands, and ordinarily dry features are not WOTUS. As such, the Corps can readily issue AJDs in the vast majority of cases … and do not need to wait for the development of a final rule further revising the definition of WOTUS.” The groups have also provided input on what the revised rule should cover in light of the Sackett decision, even though the agencies will likely bypass the formal rulemaking process and forego public comment.

Litigation Status in Brief

The U.S. Supreme Court’s May 25, 2023, decision in the Sackett case necessitated another look at the Biden Administration’s 2023 rule—a key factor in permitting projects. Federal agencies must reinterpret WOTUS in light of the decision that significantly narrowed the scope of the Clean Water Act section 404 jurisdiction and permitting requirements. The flawed 2023 rule is still on hold in 27 states thanks to AGC-backed legal actions, which are still active even though proceedings have been paused while the agencies update the 2023 rule. It is highly unlikely that the agencies’ soon-to-be released rushed changes to the rule will resolve its legal shortcomings, which are not limited to the “significant nexus” principle that the Supreme Court rejected.

Current Definition of WOTUS

According to EPA, the 2023 rule is not currently operative in certain states and for certain parties due to litigation (see here regarding AGC’s ongoing litigation and list of 27 states where Biden’s WOTUS rule is not in effect). Where the 2023 Rule is not currently operative, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime until further notice. The “pre-2015 regulatory regime” refers to the agencies’ 1986/1988 regulations at 40 CFR 230.3(s) that define WOTUS, implemented consistent with relevant case law and guidance. Additionally, the agencies will interpret the phrase “waters of the United States” as consistent with the Supreme Court’s decision in Sackett. More information on the rule status is available on EPA’s website.

Note of caution: Some AGC members have also reported that in the states where the 2023 rule is on hold, some agency staff may try to use the 2023 rule’s interpretation of “relatively permanent.” This is irregular, as the entirety of the 2023 rule is on hold in those areas, as EPA acknowledges with its reference to the pre-2015 regulatory regime.

For more information, contact Melinda Tomaino at [email protected].