NWC NEWS ALERT (Aug. 29, 2023)

Good afternoon,

In a significant development today, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps/USACE) have unveiled a final rule that amends the “Revised Definition of ‘Waters of the United States’”, which is set to take effect immediately upon its publication in the Federal Register (expected in several weeks). This announcement comes as a response to the recent ruling by the U.S. Supreme Court in Sackett v. EPA earlier this year, where the court determined that the agencies could no longer utilize the “significant nexus” text as a basis for determining federal jurisdiction.

The “significant nexus” test, introduced by U.S. Justice Kennedy in the 2006 decision in Rapanos v. United States, has been a cornerstone of discussions around federal jurisdiction over water bodies and their interconnectedness. The ruling in Rapanos led to two distinct opinions: one by Justice Scalia proposing a “relatively permanent” test, and another by Justice Kennedy proposing the “significant nexus” test. Over the past two decades, federal agencies leaned towards the broader “significant nexus” test to establish jurisdiction over water resources and their interlinked components. The previous WOTUS rule, finalized in March 2023, was constructed upon the foundation of the “significant nexus” test.

However, in a significant twist, the Supreme Court, in a decision rendered in May 2023, rejected the application of the “significant nexus” test. The revised WOTUS rule eliminates the “significant nexus” terminology from the previously enacted March 2023 WOTUS rule. Immediately after the court’s decision, the agencies announced their intent to redraft the WOTUS rule, minus the “significant nexus” test, to release prior to Sept. 1.

The agencies plan to have a webinar on the new WOTUS rule on September 12, 2023 at 3pm ET. To register: https://www.zoomgov.com/webinar/register/WN_-pfqxYFLROSM_aIOjaQzPw.

‘Waters of the U.S.” is a term used in the Clean Water Act to determine federal vs. state jurisdiction of waterbodies and conveyances. The phrase has been around since the 1899 Rivers and Harbors Act but was added to CWA in 1970 as a way to differentiate between waters that are regulated at the state vs. federal levels.

NWC is currently analyzing the updated WOTUS rule to assess its implications for water resource management. NWC’s examination is not only focused on ensuring that no changes beyond the removal of the “significant nexus” text have been introduced but also on verifying the rule’s alignment with the agencies’ commitment to adhere to the Supreme Court’s recent ruling. Stay tuned for further insights.

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