On August 29, 2023, the U.S. Environmental Protection Agency and the Department of the Army announced a final rule that amends the definition of “waters of the United States” under the federal Clean Water Act. The new rule significantly narrows both agencies’ enforcement and permitting jurisdiction over isolated and inland wetlands by limiting the Clean Water Act’s applicability to those adjacent wetlands having a continuous surface connection to “waters of the United States.”
The Clean Water Act generally prohibits the discharge of dredged or fill material into navigable waters. Under Section 404 of the Clean Water Act, however, the US Army Corps of Engineers may issue permits for such discharges after public notice and opportunity for public hearings.
The Clean Water Act defines navigable waters as “waters of the United States,” which had been interpreted by the agencies to include wetlands adjacent to tidal waters, interstate waters, or territorial seas, including isolated wetlands that may significantly affect the chemical, physical, or biological integrity of waters of the United States.
On May 25, 2023, in its decision in Sackett v. Environmental Protection Agency, the United States Supreme Court significantly limited the applicability of the Clean Water Act to adjacent wetlands. The Supreme Court held that “waters of the United States” may extend to adjacent wetlands, but only if those wetlands are, as a practical matter, indistinguishable from the waters of the United States.
The final rule announced in August brings the regulatory definition of jurisdictional waters of the United States into compliance with the Supreme Court’s Sackett decision. The final rule continues to define “waters of the United States” to include wetlands adjacent to traditional navigable waters, interstate waters, or territorial seas, but limits the applicability of the Clean Water Act to those adjacent wetlands “having a continuous surface connection” to waters of the United States. The continuous surface connection rule replaces the prior definition of adjacent wetlands, which included wetlands that were bordering, contiguous, or neighboring to waters of the United States, including those which may be separated by man-made dikes or barriers, natural river berms, and beach dunes. The final rule also walks back the applicability of the Clean Water Act to isolated wetlands that may significantly affect the chemical, physical, or biological integrity of waters of the United States, which was previously referred to as the “significant nexus test.”
The final rule became effective on September 8, 2023.
If you have any questions about the applicability or impact of these changes to the definition of waters of the United States for purposes of the Clean Water Act or want to discuss your project’s local, state, and federal permitting needs, please feel free to contact Attorney Nabulsi by e-mail at ssn@rose-law.net or by phone.
