On August 29, 2023, the Biden administration’s U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers unveiled a final rule poised to reshape environmental regulations. This rule, in alignment with the Supreme Court’s May verdict in Sackett v. EPA, redefines “waters of the United States” under the Clean Water Act (CWA), affecting wetlands nationwide. Under this ruling, agencies face more stringent criteria when determining jurisdiction over wetlands. (Please see Varnum’s May 31, 2023 Advisory).
To conform with the Court’s Sackett decision, the EPA amended its definition of “adjacent” to apply to only adjacent wetlands “having a continuous surface connection” with a “waters of the United States.” Worth noting, the EPA also struck key words from its prior “adjacent” definition like “bordering, contiguous, or neighboring” wetlands—further demonstrating that only wetlands having a continuous surface connection with a “waters of the United States” are under federal jurisdiction.
Some commentators have suggested that the new rule falls short of Sackett’s requirements. The new “adjacent” definition does not speak to a wetland’s geographic proximity to a “waters of the United States” (WOTUS). As a result, any wetland with a “continuous surface connection” to a WOTUS could be governed by the CWA, even if the “adjacent” wetland was miles away with some hydrologic surface connection. This does not appear to be Sackett’s intention.
Additionally, the amended rule no longer uses the prior “significant nexus” test—which analyzed whether wetlands “significantly affect the chemical, physical, and biological integrity” of a covered water—when considering if a body of water is regulated by the CWA.
This rule sets the stage for a contentious debate between environmental advocacy groups and states advocating for stringent regulation, and business interests and states favoring industry-friendly policies. However, given the EPA’s need to conform its rule with the Sackett decision, the agency has explained that the new WOTUS rule will not go through the typical federal Administrative Procedures Act’s procedures (like notice and public comment).