The EPA released an updated regulation defining “waters of the United States” (WOTUS) on August 29, 2023, which significantly narrows the scope of the previous rule. WOTUS has been a continual issue facing landowners since the passage/update of the Clean Water Act (CWA) in 1972.
But what is WOTUS and why does it matter? WOTUS is a definition that determines where the federal government has jurisdiction to enforce the CWA.
The CWA extends to “navigable waters,” and navigable waters are defined as “waters of the United States.” The definition did not provide a great deal of clarity on where and when the U.S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engineers (the Corps) could enforce the CWA against private landowners. Courts and successive administrations have grappled with this definition for years because the definition of WOTUS matters greatly. The broader and more expansive the definition, the more types of water bodies will be covered, extending the jurisdiction over more property. Providing a bright-line definition on where the CWA applies has proven to be elusive.
On May 25th, 2023, the United States Supreme Court (Court) ruled in Sackett v. EPA, narrowing the types of water bodies that can be considered to fall under the jurisdiction of the CWA. The updated regulation released on August 29th incorporated the Court’s findings in the Sackett case and significantly narrowed the scope of where the CWA can be applied (to read a summary of the changes, click here).
A number of lawsuits challenging the earlier version of this rule remain pending and other challenges to the revised regulation could be initiated. There will also be questions to work through as the agencies begin implementing the new rule across the country. Still, the new rule represents a substantial change to a definition that has garnered much attention over the past four decades.
To learn more about the updated regulation, click here.
To learn more about the Sackett decision, click here.
To learn more about the Clean Water Act, click here.
