U.S. EPA issues final WOTUS definition

On December 30, 2022, U.S. EPA and the U.S. Department of the Army announced a final rule revising the definition of Waters of the United States (WOTUS). The final rule largely follows the substance of U.S. EPA’s proposed rule from December 7, 2021. (Bricker’s prior article discussing the proposed rule is available here.)

With its final rule, U.S. EPA returns to the pre-2015 definition of WOTUS, with updates to reflect guidance following the U.S. Supreme Court’s Rapanos v. United States decision, incorporating both the “significant nexus” standard from Justice Kennedy and the “relatively permanent” standard set forth by the plurality of the Justices.

Together with their final rule the agencies also released a joint coordination memo, with the stated intent of ensuring greater federal coordination, accuracy and consistency when issuing jurisdictional determinations.

The final rule will become effective 60 days after it is published in the Federal Register. Litigation over the final rule will surely commence. A U.S. Supreme Court decision in the pending Sackett v. EPA case, in which the “significant nexus” standard is at issue, may ultimately be determinative. (Bricker’s separate article discussing the Sackett v. EPA case is available here.)

Update:  The final rule was published in the Federal Register on January 18, 2023.  The rule will be effective on March 20, 2023.