ed federal scope of authority, it will be critical for project developers to understand how individual states regulate waters and wetlands within their boundaries where the scope of state jurisdiction over waters has always existed but is no longer within the scope of the CWA (as well as potential changes to state laws and regulations).1 For additional background on 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”).

edged, the agencies will have to define what “continuous” means.As for individual states, some do have their 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.

ia, writing for the Rapanos four-Justice plurality in 2006, subjected the CWA to a textual analysis and concluded that “waters of the United States” only extends to those wetlands that are indistinguishable from waters of the United States as properly understood, and the Sackett majority agreed with this approach. Further, and perhaps more impactful, is that the Sackett court clarified that WOTUS also includes tributaries, intrastate lakes and ponds, but only if they are “relatively permanent, standing or continuously flowing bodies of water” with a continuous surface connection to jurisdictional waters, effectively eliminating coverage of ephemeral streams, lakes and ponds. It is estimated that the Sackett ruling eliminated CWA coverage for over half of the nation’s wetlands.In response, the newly minted WOTUS rules became general rules when the Biden Administration published, without notice and comment, a new updated rule to conform to the Sackett decision on September 8, 2023. (See 88 Fed. Reg. 61964).) The revised rule eliminated the “significant nexus” test, eliminating “interstate wetlands” from CWA jurisdiction, and revised the earlier rule’s conception of “adjacent,” redefining it as “having a continuous surface connection.” Before, coverage would extend to wetlands separated from other WOTUS by, for example, man-made dikes, berms and barriers, natural river berms and beach dunes. This rulemaking, too, is being challenged. The 24 states that challenged and successfully enjoined the March 2023 rulemaking continued their legal battle in the Northern District of North Dakota, now also joined by Kentucky in a separate suit in Kentucky, and Idaho and Texas in a case in the Southern District of Texas.The force of the reasoning in Sackett persuaded the Fifth Circuit in a recent case, Lewis, et al. v. United States, et al., 88F. 4th 1073 (2023), decided on December 18, 2023, to terminate, post haste, the U.S. Army Corps of Engineers’ prolonged administrative proceedings regarding the

l incorporate the ongoing reconsideration into its review and will consider the advice and recommendations of the CASAC. EPA “will move swiftly to execute this new review of the underlying science and the standards — prioritizing transparency, scientific integrity, inclusive public engagement, and environmental justice.” On August 25, 2023, EPA invited stakeholders to assist it in developing and refining the scientific information base for the review of the ozone NAAQS by submitting research studies and data that have been published or accepted for publication since January 1, 2018. 88 Fed. Reg. 58264. All communications and information are due October 24, 2023.EPA And Department Of The Army Revise Definition Of “Waters Of The United States” To Conform To Supreme Court Decision: On September 8, 2023, EPA and the Department of the Army amended the Code of Federal Regulations to conform the definition of “waters of the United States” to the Supreme Court’s 2023 decision, Sackett v. EPA. 88 Fed. Reg. 61964. The conforming rule amends the provisions of the agencies’ definition of “waters of the United States” that are invalid under the Supreme Court’s interpretation of the Clean Water Act (CWA) in the 2023 decision. While EPA’s and Army’s 2023 rule defining “waters of the United States” was not directly before the Supreme Court, EPA’s August 29, 2023, press release states that “the decision in Sackett made clear that certain aspects of the 2023 rule are invalid.” EPA notes that the amendments issued are limited and change only parts of the 2023 rule that are invalid under Sackett. For example, according to EPA, the final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. The final rule was effective September 8, 2023.EPA Proposes To Amend General Provisions For NESHAP: On September 13, 2023, EPA proposed to amend the General Provisions for National Emission Standards for Hazardous Air Pollutants (NESHAP) to add

On September 8, 2023, the United States Environmental Protection Agency and the United States Army Corps of Engineers (collectively, the Agencies) published a final rule (Agency Rule) to amend the definition of “waters of the United States” under the Clean Water Act. 88 Fed. Reg. 61964. The Agency Rule amends a definition of “waters of the United States” that the Agencies issued in January of this year. The new definition was necessitated by the holding of the Supreme Court of the United States inSackettv. EPA, 598 U.S. _, 143 S. Ct. 1322 (2023), which construed waters of the United States more narrowly than the Agencies had. The stated purpose of the Agency Rule is to conform to the holding inSackett. The Agency Rule went into effect immediately on September 8, 2023, that is, without opportunity for notice and comment.The definition of “waters of the United States”determines the scope of the Agencies’ jurisdiction under the Clean Water Act to regulate discharges and dredge and fill activities in or to streams and wetlands.The Clean Water Act applies to “navigable waters,” which the statute further defines as “waters of the United States, including the territorial seas.”33 U.S.C. §1362(7).The meaning of “waters of the United States” has been a source of controversy