the history of waters of the United States rulemakings, guidance, and litigation, see our prior alerts: US Supreme Court Issues Landmark Clean Water Act Decision, Significantly Narrowing the Scope of “Waters of the United States” under Federal Law (Jun. 5, 2023); A New Final (But Not the Final?) WOTUS Rule (Jan. 10, 2023); EPA and Corps Release Updated Definition of Waters of the United States (Dec. 3, 2021); Back to the Drawing Board on WOTUS: Federal Court Vacates Trump Administration’s Navigable Waters Protection Rule (Sept. 20, 2021); Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction (Jan. 14, 2019).2 88 Fed. Reg. 61964 (Sept. 8, 2023).3 See 88 Fed Reg. 61964-65 (citing 5 U.S.C. § 553(b)(B), which provides that, when an agency for “good cause” finds that public notice and comment procedures are “impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing the public an opportunity for comment).4 88 Fed. Reg. 3004 (Jan. 18, 2023).5 Sackett v. EPA, 598 U.S._, 143 S. Ct. 1322 (2023); see also Rapanos v. United States, 547 U.S. 715 (2006).6 See 88 Fed. Reg. 3004, 3084-88 (“Determining Whether a Tributary Meets the Relatively Permanent Standard”).7 See 88 Fed. Reg. 3004, 3095-96 (“Determining Whether a Tributary Meets the Relatively Permanent Standard”).

nder federal jurisdiction, rather than relying on the government to prove that it is regulated.ConclusionThe 2023 WOTUS Rule represents a substantial expansion of jurisdiction over streams and wetlands. The "significant nexus" test is a consultant's dream – requiring consideration of multiple "functions" and "factors" with no clear guidance from the agency. Hopefully, at the very least, a comprehensive guidance will be following (as followed Rapanos). But, that may be cold comfort to landowners who are likely faced with high costs, delays and the inevitability of jurisdiction. Yet, the Supreme Court looms in the rearview mirror. Although the administration appears unconcerned by the pending outcome in Sackett, that decision could mean that the WOTUS Rule is short-lived. It came as no surprise that the rule was challenged on the day it was published in the Federal Register. Unfortunately, this means more uncertainty for the present time.Notes33 C.F.R. Part 328 (2022).40 C.F.R. Part 120 (2022).88 Fed. Reg. 3004-3144 (Jan. 18, 2023) (the "WOTUS Rule").The Navigable Waters Protection Rule: Definition of "Waters of the United States" 85 Fed. Reg. 22250 (April 21, 2020).The preamble only mentions Sackett once and does not address the potential significance if the Supreme Court strikes the "significant nexus" standard.40 Fed. Reg. 31320 33 CFR § 323.2(c) (1978).33 C.F.R. § 328.3(c)(4) (1982).The term "intermittent" means continuous flow during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts). 33 C.F.R. §328.3(c)(5)(2020). The term "ephemeral" means "surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall)." 33 C.F.R. §328.3(c)(3)(2020). The central distinction between regulated "perennial," "intermittent" and non-jurisdictional "ephemeral" waters appears to be whether or not there is predictable, continuous surface flow occurring in the same geogra

ace connection with that water, making it difficult to determine where the ‘water’ ends and where the ‘wetland’ begins.” The Supreme Court ultimately ruled that, because the couple’s property was distinguishable from Priest Lake, EPA could not regulate their property as a federal wetland.Sackett narrows the scope of properties that may be deemed protected wetlands under the CWA and, thereby, subjected to federal requirements. Properties with wetlands separate from larger bodies of water may no longer be susceptible to federal regulation. As such, this decision may be viewed as a victory for some property owners and developers who were punished for, or are prevented from, disturbing land areas previously regulated by the federal government.See generally 598 U.S. ____ (2023).Id. at 4 (2023).See id. at 5.See id. at 5–6.See id.Id. at 27–28.See id. at 14.See id. (quoting Rapanos v. United States, 547 U.S. 715, 739 (2006) (plurality opinion)).See Sackett, 598 U.S. at 14–18.See id. at 22.See 88 Fed. Reg. 3004 (Jan. 18, 2023); see also Rapanos, 547 U.S. at 759 (Kennedy, J., concurring).See Sackett, 598 U.S. at 22 (citing 88 Fed. Reg. 3004, 3144 (Jan. 18, 2023)) (citations omitted).See Sackett, 598 U.S. at 19.See id. at 19–21 (quoting Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)) (citations omitted).Sackett, 598 U.S. at 27 (quoting Rapanos, 547 U.S. at 742, 755 (plurality opinion)).See id. at 22.See Sackett, 598 U.S. at 4–6, *27–28.See id. at 22.

ther waters a requirement for Clean Water Act regulation.It remains to be seen how other lower courts will interpret Sackett's language about "continuous surface connection" and the indistinguishability of wetlands and waters. Where the courts ultimately land on this issue will have significant practical consequences for property owners across the country.The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.Reprinted with permission fromLaw360.[1] Sackett v. Environmental Protection Agency, 598 U.S. at 651 (2023).[2] Id. at 676.[3] Id. at 678-79 (quoting Rapanos v. United States , 547 U.S. 715, 742 (2006)).[4] 33 CFR 328.3(a)(4), -(c)(2); 40 CFR 120.2(a)(4), -(c)(2).[5] Final Rule, Revised Definition of "Waters of the United States," 88 Fed. Reg. 3004, 3096 (Jan. 18, 2023) (citing U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008)).[6] Sackett, 598 U.S. at 672, 676.[7] United States v. Andrews , 677 F.Supp.3d 74 (D. Conn. 2023).[8] Id. at 87-88.[9] Lewis v. United States , 88 F.4th 1073 (5th Cir. 2023).[10] Id. at 1078.[11] Glynn Environmental Coalition Inc. v. Sea Island Acquisition LLC , 2024 WL 1088585 (S.D. Ga. 2024).[12] 11th Cir., March 7, 2024.[13] Id. *5.

own protections such as Ohio, which has an isolated wetlands rule. These states may fill the gap left by Sackett. Other states, such as North Carolina, are moving to change state law to prohibit greater wetlands protections than provided under federal law. There are also states with no independent wetland protections at all such as Kentucky, Texas, and Oklahoma. They seem unlikely to rush to fill the gap left after Sackett.It is important to keep in mind that Sackett did not take away all federal jurisdiction. Therefore, project developers will still want to confirm there are no federal wetlands on their property by engaging wetlands consultants. Further, depending on the findings, the Army Corps may need to issue a determination before projects can move forward.Sackett v. EPA, 598 U.S. 651, 143 S.Ct. 1322 (2023). Revised Definition of “Waters of the United States”; Conforming, 88 Fed. Reg. 61964 (Sept. 8, 2023) (“Conforming Rule”). Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004 (Jan. 18, 2023).See Business Pls.’ Mot. Summ. J., State of Texas et al. v. U.S. EPA, et al., No. 3:23-cv-00017 (S.D. Tex. filed Feb. 2, 2024).Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006). North Carolina Farm Act of 2023 (N.C. Senate Bill 582), available at: https://www.ncleg.gov/BillLookUp/2023/s582.

icated and overlapping regulatory regimes” of Colorado’s mining laws require “a more comprehensive and rigorous application of the competing Maui factors.” Notably, the panel clarified that “[r]ather than holding plaintiffs accountable for failing to put on evidence of all the geology that would establish the functional equivalent of a direct discharge to the Middle Fork, the court effectively shifted the burden to High Mountain to prove its settling ponds were not the functional equivalent of a direct discharge.”Sackett v. EPA The legal battle over EPA’s definition of WOTUS is as fierce as ever. To start 2023, the Biden Administration’s EPA and U.S. Corps of Engineers rolled out an amended, expansive WOTUS definition to include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands and other waters satisfying either the “relatively permanent” or “significant nexus” tests. The 2023 rules were published in the Federal Register at 88 FR 3004. Opposition to the rule was immediate, with the rule being enjoined in approximately half of the states.Then came Sackett et ux. v. Environmental Protection Agency, decided on May 25, 2023. (See 143 S. Ct. 1322 (2023).) Justice Alito, writing for the Court, describes this case as answering a “nagging question” about the outer limits of the reach of the CWA, the principal federal law regulating water pollution in the United States. Justice Alito observed that the Act has been “a great success,” but it is also a potent weapon, subjecting miscreants to both severe civil and criminal penalties. Nevertheless, the limits of federal power contained in the statutory definition of “navigable waters” as the linchpin of federal jurisdiction has been controversial for many years, as exemplified by several opinions of the Supreme Court, which have struggled to produce regulatory clarity. In the celebrated Rapanos case, decided in 2006, Justice Kenndy’s concurring opinion provided the decisive fift

Swampbuster Program and Clean Water Act:USACE and USDA have a history of publishing guidance and memorandums of agreement attempting to promote consistency between the programs. However, some of the efforts lead to further confusion, particularly about the criteria for determining when PCC lands lose their exclusion status: abandonment under the Clean Water Act compared to change in use under the Program. In January 2023, a new rule redefining “waters of the United States” changed the regulatory text to attempt to improve the consistency between the Clean Water Act and Food Safety Act’s use of PCC. Specifically, under the new rule, a PCC designated by the NRCS can qualify as a proper exclusion under the Clean Water Act.To avoid noncompliance penalties, landowners should consider both the Clean Water Act permitting requirements and the implications of losing federal farm benefits under the Program before moving forward with agricultural field expansion or non-agricultural developments. 88 Fed. Reg. 3004[View source.]

On August 29, 2023, the U.S. EPA and U.S. Army Corps of Engineers announced a pre-publication version of their final rule amending the definition of “waters of the United States” (WOTUS) in response to the Sackett v. EPA decision issued by the U.S. Supreme Court earlier this year.The agencies previously issued a “Revised Definition of ‘Waters of the United States’” rule on January 18, 2023 (88 FR 3004) (the 2023 Rule), just a few months before the Supreme Court issued a decision in Sackett v. EPA on May 25, 2023, which invalidated certain key portions of the 2023 Rule.The amendments to the 2023 Rule address the portions of the rule that were deemed invalid under the Sackett decision.Most significantly, the amended rule no longer allows for implementation of the significant nexus test to identify tributaries and other waters as federally protected.It also revises the adjacency test to mean “having a continuous surface connection”; clarifies that interstate wetlands do not fall within the interstate waters category; and explains the types of features to be considered under the “additional waters” category.No changes were made to the rule as it impacts traditional navigable waters, territorial seas, and impoundments.Moreover, the 2023 Rule included eight specific exclusions from the definition, which remain unchanged. These exclusions include prior converted cropland; waste treatment systems, includin

to the pre-publication version of the proposed rule, comments will be due 45 days after the proposed rule is published in the Federal Register. Under the PRA, comments on the information collection provisions are best ensured of consideration if OMB receives 30 days after the proposed rule is published in the Federal Register. More information will be available in our forthcoming memorandum.RCRA/CERCLA/CWA/CAA/PHMSA/SDWAEPA Issues Statement On Sackett v. EPA: According to a June 26, 2023, statement issued by EPA, EPA and the U.S. Department of the Army (agencies) are in receipt of the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. EPA. EPA states that “[i‌]n light of this decision, the agencies are interpreting ‘waters of the United States’ consistent with the Supreme Court’s decision in Sackett.” The agencies are developing a rule to amend the final “Revised Definition of 'Waters of the United States” rule, published in the Federal Register on January 18, 2023 (88 Fed. Reg. 3004), consistent with the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. EPA. The agencies intend to issue a final rule by September 1, 2023.EPA Proposes To Add Electronic Reporting Provisions To NESHAP For RICE And NSPSs For Internal Combustion Engines: On June 26, 2023, EPA proposed to amend the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), the New Source Performance Standards (NSPS) for Stationary Compression Ignition (CI) Internal Combustion Engines, and the NSPS for Stationary Spark Ignition (SI) Internal Combustion Engines to add electronic reporting provisions. 88 Fed. Reg. 41361. According to EPA, the addition of electronic reporting provisions will provide for simplified reporting by sources and enhance availability of data on sources to EPA and the public. In addition, a small number of clarifications and corrections to these rules are being proposed to correct inadvertent and other

Download PDFThe United States Environmental Protection Agency and the United States Department of the Army Corps of Engineers (collectively “EPA”) announced that they are developing a rule to amend the final “revised definition of waters of the United States” that it had previously finalized. (See previous blog post here.)See 88 Fed. Reg. 3004 (Jn. 18, 2023).EPA states that it will be issuing the rule in light of the United States Supreme Court (“SCT”) decision in Sackett v. United States Environmental Protection. (See previous blog post here.)The SCT issued an Opinion on May 25th in the Sackett case addressing the scope of the Clean Water Act definition of “waters of the Unites States” (“WOTUS”).The majority articulated a two-part process for determining a WOTUS:The CWA’s use of “waters” in §1362(7) refers only to “geo-graphic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous sur-face connection. Rapanos v. United States, 547 U. S. 715, 755, 742, 739.To assert jurisdiction over an adjacent wetland un-der the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional