EPA Amends Clean Water Rule For About Half Of U.S. States

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) recently released an amendment to the agencies’ regulation defining which U.S. waters are subject to protections from the Clean Water Act. The Clean Water Act (CWA) prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the CWA.

The rule, known as waters of the United States (WOTUS), needed to be amended in order to comply the Supreme Court’s decision opinion in Sackett v. EPA. (Read more about that decision here.)

The changes announced by the EPA and Corps of Engineers last week would:

• Redefine “adjacent” to simply mean “having a continuous surface connection”;
• Strike all references to waters qualifying as jurisdictional on the basis of whether they “significantly affect the chemical, physical, or biological integrity of waters” and correspondingly removing the definition and qualifying criteria for “significantly affect”; and
• Remove “interstate wetlands” from the list of WOTUS categories.

The revised rule took effect immediately — but only in certain states. As Connecting the Dots has reported, the Biden administration’s previous version of the rule was suspended in roughly half the country. As such, the revised rule issued last week will be effective in only 23 states, including California, Washington, and Arizona).

In the other 27 states where the Biden administration rule was suspended, including Texas, Alaska, and Oklahoma, the EPA and Army Corps of Engineers will interpret WOTUS consistent with the pre-2015 regulatory regime and the Supreme Court’s decision in Sackett until further notice.

The Army Corps of Engineers and EPA will provide an informational webinar on the changes on September 12, 2023 at 3 p.m. ET. Participation will be limited, so if your company is interested, register now at this link.