EPA issues post-Sackett WOTUS rule, removes numerous waterways from Clean Water Act regulation
The new rule from EPA conforms WOTUS definition to that of the Supreme Court's decision in Sackett v. EPA.
By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture
August 30, 2023
Fast facts:
- EPA issues new rule on WOTUS definition
- New definition aligns with SCOTUS decision in Sackett case
- NALC’s Rollins will discuss WOTUS during a Nov.15 webinar
(651 words)
(Newsrooms: with photo of Rollins)
FAYETTEVILLE, Ark. — The highly anticipated new waters of the United States, or WOTUS, rule released Tuesday by the Environmental Protection Agency will remove
scores of water bodies from regulation under the Clean Water Act.
Absent from the new rule is the “significant nexus” test which had been part of WOTUS
since the 2006 Supreme Court decision Rapanos vs. U.S. In that decision, Justice Anthony
Kennedy wrote that wetlands should be included in the definition of WOTUS if they
shared “significant nexus” with a water already identified as a WOTUS.
The EPA’s new WOTUS rule follows the May 25 U.S. Supreme Court decision in Sackett v. EPA. In that case, the high court narrowed the definition of WOTUS
to include open, flowing bodies of water such as streams, rivers, lakes, and the ocean,
along with those wetlands that share a continuous surface connection with such bodies
of water.
Prior to the Sackett decision, WOTUS included adjacent wetlands, defining “adjacent”
as “bordering, contiguous, or neighboring.” In its updated rule, EPA redefined '”adjacent”
as “having a continuous surface connection,” bringing it in line with the Sackett
decision.
“The effects of EPA’s WOTUS decision will definitely be felt by ag producers, especially
when it comes to wetlands,” Brigit Rollins, staff attorney for the National Agricultural
Law Center, said.
The new WOTUS rule reduces the number of waters and wetlands that would require a
permit for point source pollution.
“After the decision in Sackett, naturally the EPA was going to take another look at
its definition of WOTUS,” Brigit Rollins said. With “significant nexus” gone, “now
only wetlands that share an unbroken or continuous surface water connection with water
already identified as WOTUS are included.”
This means that numerous bodies of water that previously would have been considered
WOTUS will no longer have that classification.
“EPA is saying that wetlands which would share a surface water connection with a WOTUS
but no longer have that connection due to manmade barriers such as levies, dikes or
sand dunes will not be included in the WOTUS definition,” Rollins said.
Pre-Sackett WOTUS
After the Biden Administration’s March 2023 WOTUS rule went into effect, courts enjoined it in 28 states. There are three lawsuits outstanding regarding the 2023 rule: Texas v. EPA, West
Virginia v. EPA, and Kentucky v. EPA. With EPA’s final decision now out, the lawsuits
are paused, and their future uncertain.
“It’s hard to say what will happen with those,” Rollins said. “We probably won’t know
the outcome for a couple more weeks. Those lawsuits may be dropped, or those involved
may go on and litigate.”
Rollins, who focuses on environmental law in her research, has been providing timely
updates on WOTUS through 2023, both online and via webinar.
On Nov. 15, Rollins will continue the discussion of WOTUS in her next NALC webinar,
“What’s Up with WOTUS: Post-Sackett and Beyond.” The third installment in Rollins’
series will cover subsequent events following the Sackett decision and long-term effects
of the ruling. Registration is online. Recording of the first and second installment in the series are also available online.
Why WOTUS matters
WOTUS is a critical component of the Clean Water Act. The CWA was established by Congress
in 1972 with the goal of improving the country’s water quality. To achieve that goal,
certain bodies of water are declared as WOTUS under the CWA, granting them protections.
“The WOTUS definition has been the subject of considerable debate over the years,
but 2023 has been a considerably busy year for all things WOTUS,” Rollins said.
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Media contact:
Drew Viguet
Communications & Special Projects Coordinator
National Agricultural Law Center
dviguet@uark.edu