New WOTUS rule restores protections for many waters, but uncertainty persists due to continuing litigation

Read the full story in Environment + Energy Leader. See also coverage at Agri-Pulse.

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (collectively Agencies) announced the issuance of a final rule defining “waters of the United States” (WOTUS), a key term in the Clean Water Act (CWA). That phrase, which serves as the definition for “navigable waters” in the statute, effectively establishes the boundaries of the Agencies’ regulatory authority under the CWA. The rule was published in the Federal Register on January 18, 2023, and will take effect 60 days thereafter.

As previously discussed, during the Trump administration, the Agencies promulgated a rule that defined WOTUS more narrowly than previous iterations of the rule, substantially reducing the waters subject to CWA protections and EPA authority under that statute. The new rule establishes a broader definition of WOTUS, although seeking to reflect certain Supreme Court decisions, the new rule is not as broad as the earlier (pre-2015) WOTUS rules. However, with the Supreme Court’s decision still pending in Sackett v. Environmental Protection Agency, a case in which the Court will decide the types of wetlands that are within the statute’s scope, and the litigation already filed in the Southern District of Texas challenging the new rule, uncertainty remains regarding the new rule’s applicability.