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Continued Regulatory Turmoil for “Waters of the US”
Following the publishing of the “Revised Definition of ‘Waters of the United States’” in the Federal Register in January 2023—which itself sought to update and streamline regulatory definitions for jurisdictional waters—a flurry of litigation and subsequent court rulings have again led to confusion over the regulatory definition of Waters of the US (WOTUS). These rulings have paused the use of the 2023 rules, relegating jurisdictional rulings to the pre-2015 regulatory regime. However, these court rulings were made within State and regional courts and thus were geographically limited to the local jurisdictions of each court, leaving a mix of regulatory regimes based on each state.
Furthermore, a recent Supreme Court ruling—which equally affects all states—creates a major change in determining jurisdictionality of wetlands. In a unanimous ruling for Sackett v. EPA, the Supreme Court determined that jurisdictional wetlands must have a direct surficial water connection with an existing WOTUS. This ruling overrules a previous Supreme Court opinion by Justice Kennedy in the 2008 Rapanos decision.
The Environmental Protection Agency and Army Corps of Engineers, the regulatory agencies for WOTUS, are currently working on updating guidance given these recent rulings. More details on the status of WOTUS regulations and recent court rulings can be found at:
https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update
https://www.scotusblog.com/2023/05/supreme-court-curtails-clean-water-act/.
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