On September 8, 2023, the Army Corps of Engineers and Environmental Protection
Agency published new standards defining “waters of the United States” as it relates
to regulations under the Clean Water Act. The new regulations took
effect immediately to fill a void left by the Supreme Court’s ruling in Sackett
v. Environmental Protection Agency, 598 U.S. 651 (2023), in May, and they replace
standards implemented in March 2023.
After Sackett, the CWA’s
corresponding regulations did not provide a working definition for waters of
the United States, a necessary starting point for any regulatory action under
the CWA. The agencies state in the entry in the Federal Register that because the
new rule is to amend the previous one to conform to the Supreme Court’s ruling
in Sackett, advanced public notice and a comment period are not
necessary; the new promulgation does not call for discretion by the agency.
The March standards sought to expand the
definition of waters of the United States to encompass two competing standards outlined
in a prior Supreme Court case that dealt with the definition, Rapanos v.
United States, 547 U.S. 715 (2006). The two standards were the “relatively
permanent” standard and the “significant nexus” standard. The relatively
permanent standard was agreed upon by the plurality in Rapanos, focusing
on waters that maintain a continuous surface connection to other waters that more
clearly fit into the definition of waters of the United States. The significant
nexus standard as included in the March rule included all waters that “significantly
affect the chemical, physical, or biological integrity of traditional navigable
waters, the territorial seas, or interstate waters.”
In Sackett, the Supreme Court
held that only the relatively permanent standard should apply. The new
regulations remove the significant nexus test from various provisions related
to the definition of waters of the United States. The new regulations limit the
inclusion of wetlands to the same relatively permanent surface connection
standard as other waters. Additionally, Sackett and the new regulations
change the definition of “adjacent” as it is used in the CWA to define covered wetlands
to require a continuous surface connection to covered waters. The new
definition will reduce the scope of wetlands protection under the CWA.
However, Sackett and the new
regulations seem to leave some ambiguities in how the regulations should be
implemented. Neither the Court in Sackett nor the agencies in the regulations
define what exactly “relatively permanent” or “continuous surface connection”
mean regarding waters and wetlands. “Relatively permanent” allows that a water
covered under the CWA may be dry or cease flowing for some period of time. How long
is a question that will likely be litigated in the future. Likewise, “continuous
surface connection” may come into play in litigation in the future related to
wetlands adjacent to waters whose coverage under the CWA may be questioned for
their seasonal or other periodic disruptions.
