By: Ben Schulz
In January of 2023, the Environmental Protection Agency (EPA) and the Department of the Army published a rule to revise the definition of “waters of the United States” under the Clean Water Act (CWA). Subsequently, the Supreme Court of the United States decided Sackett v. EPA which purported a contrasting definition of the “waters of the United States.” While the Supreme Court did not directly rule on the validity of the 2023 rule, the decision in Sackett contradicted several provisions. As a result of the Sackett decision, the EPA, on September 8th, 2023, amended their rule revising the definition of “waters of the United States” in order to adhere to decision of the Supreme Court. The amended rule will allow the Army Corps of Engineers to resume making jurisdictional determinations of “waters of the United States” under the CWA.
The 2023 rule revising the definition of “waters of the United States” incorporated two jurisdictional standards under the Clean Water Act: the significant nexus standard and the relatively permanent standard. The significant nexus standard based jurisdiction on how waters either alone or in combination with similarly situated waters significantly affected the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters. The relatively permanent standard determined jurisdiction when the water is standing or continuously flowing with a continuous surface connection to traditional navigable waters, the territorial seas, and interstate waters. Under the 2023 rule, waters could be determined as “waters of the United States” under either the significant nexus standard or the relatively permanent standard. The 2023 rule also incorporated a broad definition of the term ‘adjacent’ as being synonymous with bordering, contiguous, or neighboring. The broad use of the term ‘adjacent’ allowed wetlands to be considered “waters of the United States” even if they were separated by dikes, barriers, or natural river berms.
The decision of Sackett in May of 2023 significantly limited the reach of federal jurisdiction and contradicted the 2023 rule. The Supreme Court found that the significant nexus standard should not be applied under the CWA to determine “waters of the United States.” Instead, the appropriate measurement for jurisdiction was the relatively permanent standard. The Supreme Court reached this conclusion by construing the term “water” under the CWA to traditional navigable waters and requiring the term “adjacent” to mean that there is a continuous surface connection.
To comply with the decision in Sackett, the EPA amended its 2023 rule in August to take immediate effect on September 8th, 2023. Because of Sackett, the EPA amended provisions that went beyond the Supreme Court’s interpretation of the terms “waters” and “adjacent,” and removed jurisdictional standards other than the relatively permanent standard. The rule removed the use of the significant nexus standard to determine jurisdiction, the term “adjacent” is now redefined to require a continuous surface connection, and interstate wetlands are removed as a category of “waters of the United States” because they fail to meet the traditional definition of “waters” under the CWA. In accordance with Sackett, the amended 2023 rule now reflects the Supreme Court’s interpretation of how to determine “waters of the United States” under the CWA.