How Does the Revised Definition of “Waters of the United States” Impact Activity or Federal Permitting on Your Site?

September 11, 2023

Developers, energy companies, commercial landowners, and sponsors of infrastructure projects take note: A new Final Rule from the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) will soon take effect, revising the regulatory definition of “waters of the United States” in a way that generally favors landowners by narrowing the definition. In effect, it reduces the applicability of the Clean Water Act (CWA) and the extent of EPA and USACE jurisdiction over properties featuring waterbodies, watercourses, or wetlands.  

On August 29, 2023, the EPA and USACE announced a final rule amending the “Revised Definition of ‘Waters of the United States’” rule issued less than a year ago, in January 2023, which defined federal jurisdiction over streams and wetlands. The EPA and the USACE released the revised final amendments rule to meet their legal obligation to conform with the recent U.S. Supreme Court decision in Sackett v. EPA that was handed down this summer.  

While not the focus of the Sackett complaint but nevertheless central to its outcome, the language of the CWA (and regulations and court decisions interpreting it) has long been contentious. The CWA, passed by Congress in 1972, prohibits discharging pollutants into “the waters of the United States” — for which a clear definition has been debated for decades. Under the Rapanos v EPA (2006) case decision, Justice Kennedy’s “significant nexus” test was established and has been used since by the USACE and EPA to determine if a wetland and/or watercourses are hydrologically connected to other traditional “waters of the United States” and/or “traditional navigable waters.”  

However, in the Sackett decision, the Court held to Justice Scalia’s opinion from the Rapanos case that “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.” This ultimately narrows the definition of adjacency, and will make fewer wetlands subject to CWA jurisdiction. 

The EPA’s amended final revised rule removes the significant nexus test, revises the adjacency test to match the “continuous surface connection” language, and makes other clarifications regarding CWA jurisdiction. It does not, however, change the exclusions or activity-based permitting exemptions listed in the January 2023 rule. The amended final revised rule will become effective once published in the Federal Register.  

As a result of ongoing litigation on the January 2023 Rule, the agencies will implement the definition of “waters of the United States” under the January 2023 Rule as amended in 23 states and the other 27 states under the interpreting definition of the “pre-2015 regulatory regime.” See the EPA’s Rule Status and Ongoing Litigation page for a U.S. map showing which “waters of the United States” definition is being used per state.  

Could Your Project Be Impacted? Let’s Talk. 

The amended “Revised Definition of ‘Waters of the United States’” rule may alter the permitting landscape for a broad range of projects and business operations. Hypothetical examples of projects for which permitting requirements may now change include: 

• Construction of pipelines, transmission facilities, or other energy developments 
• Roadway realignments or addition of new transportation infrastructure 
• Retail, office, industrial, or residential developments 

Reach out to Brook Bertig-Coll at Fisher to discuss how this change may impact your current and future projects.