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In January 2023, the U.S. Environmental Protection Agency and
the U.S. Army Corps of Engineers (Agencies) adopted a final rule
altering the definition of “waters of the United States”
(WOTUS), a key term that is referred to but not defined in the
Clean Water Act (CWA) and is crucial for determining CWA permitting
jurisdiction. The Agencies’ stated purpose in adopting the rule
was to better comply with the CWA by repealing and replacing a
definition of WOTUS that had previously been adopted during the
Trump administration; however, promulgation of the rule prompted
multiple lawsuits that once again split the nation into two
separate CWA permitting frameworks.
In May 2023, the long-anticipated U.S. Supreme Court decision,
Sackett v. EPA, added to the confusion by narrowing the
types of features that could be considered WOTUS in a manner that
had not been anticipated by the January rule or the Trump
administration’s rule preceding it. The Agencies subsequently
promulgated, without providing for public review or comment, an
updated WOTUS rule in September intended to conform with the ruling
in Sackett. But significant confusion and risk of
litigation over WOTUS remain.
On March 26, 2024, Rebecca Hays Barho,
Mary Lynn Coffee and Sara Johnson
explored the practical ramifications of the Sackett
decision. They provided a brief overview of the history of and
controversy surrounding the definition of WOTUS and discussed how
the Court’s narrowing of the WOTUS definition has and will
continue affecting permitting under the CWA. Panelists also
included Harris Frampton and Bonnie Rogers from SWCA Environmental
Consultants.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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