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Biden Administration Finalizes New Rule Defining Waters of the U.S. Under the Clean Water Act

on Thursday, 5 January 2023 in Environmental Pulse: Vanessa A. Silke, Editor

The new definition of “waters of the United States” will expand federal authority to require permits for any waterbody with a “significant nexus” to navigable waterways.

On December 30, 2022, the United States Environmental Protection Agency and U.S. Army Corps of Engineers announced a final rule defining “waters of the United States” (“WOTUS”). This final rule will significantly expand federal jurisdiction over waterbodies throughout the country. While previous regulations did not treat isolated ponds or puddles as WOTUS, this final rule will, provided that the waterbodies had some “significant nexus” to traditionally navigable waters. A pre-publication notice of the final rule is available here.

The Clean Water Act, 33 U.S.C. § 1251 et seq., is the primary federal statute regulating water quality in the United States. It uses WOTUS as a limit on federal jurisdiction. Only when pollutants or dredge material go into WOTUS may a federal agency require a permit. §§ 1342 & 1344. Because of the term’s importance to federal jurisdiction, numerous lawsuits have tested it in recent years. 

In a recent article we analyzed one such lawsuit, Sackett v. Environmental Protection Agency, which the U.S. Supreme Court currently has under consideration and which the court is likely to decide in the challengers’ favor within the next few months. Although the new final WOTUS rule will become effective 60 days after the agencies publish it in the Federal Register, it remains unclear how the Supreme Court’s decision in Sackett will impact the enforceability of the final rule.

Attorneys at Baird Holm LLP have significant experience in water law and environmental compliance. They regularly assist clients in negotiating with federal agencies regarding WOTUS permits and jurisdictional determinations. Please do not hesitate to contact us if you have questions about WOTUS, the Clean Water Act, or any related matter.

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