New Federal Definition of Waters of the USA issued by EPA and ACOE

The Izaak Walton League provides this summary of the new federal jurisdictional definition for water:

The Environmental Protection Agency and the Army Corps of Engineers have released a final rule amending the January 2023 “waters of the United States” (WOTUS) rule to conform with the Supreme Court’s decision in Sackett v. EPA. The Court’s ruling in Sackett left the agencies with no choice but to strike key elements of the January 2023 WOTUS rule in accordance with the decision. The new rule is drastically less protective of wetlands, tributary streams and overall water quality, reflecting the Supreme Court’s unprecedented rollback of the Clean Water Act in Sackett.

The new rule has three components to conform to the Court’s decision:
• Removes the “significant nexus” standard for determining what waters are covered by the Clean Water Act. This now means that the Act will only apply to “relatively permanent” streams, wetlands and interstate waters and jurisdiction will not be extended to other waterways that significantly affect the chemical, physical or biological integrity of the Nation’s waters without meeting the “relatively permanent” standard.

• Changes the definition of “adjacent” from “bordering, contiguous, or neighboring” to “having a continuous surface connection.” The Clean Water Act protects wetlands that are adjacent to navigable waters. By changing the definition of “adjacent” to only include wetlands with a continuous surface connection to a navigable waterway or another WOTUS, the Supreme Court has drastically lowered the number of wetlands protected by the Act.

• Removes “interstate wetlands” from the list of interstate waters that are considered to be waters of the United States and that are therefore protected by the Clean Water Act.

This new rule for defining waters of the United States, resulting from the Supreme Court’s decision in Sackett, is dangerously narrow and fundamentally weakens clean water protections enshrined in the Clean Water Act, one of America’s foundational environmental statutes. Some estimates from wetlands experts calculate that up to 63 percent of wetlands in America might lose protection under this new standard, while millions of miles of ephemeral and intermittent streams that directly affect water quality will also be left vulnerable to pollution