Understanding the 2023 Revised WOTUS Rule: Aligning Federal Water Regulations with Supreme Court Guidance

The revised rule defining “Waters of the United States” (WOTUS) under the Clean Water Act was significantly influenced by the Supreme Court’s decision in the case of Sackett v. EPA. This 2023 amendment refines the scope of waters that are federally regulated, emphasizing the necessity for them to have more permanent, physical connections to traditional navigable waters.

Key Elements of the Revised WOTUS Rule:

1. Narrowed Definition: The new rule focuses on waters that are:
   • Traditionally navigable waters, including oceans and large rivers.
   • Perennial and intermittent tributaries that contribute flow to traditional navigable waters.
   • Certain lakes, ponds, and impoundments of jurisdictional waters.
   • Wetlands adjacent to other jurisdictional waters that meet specific criteria for a direct hydrological surface connection.
2. Exclusions: The rule specifically excludes:
   • Features that only contain water in response to rainfall.
   • Groundwater.
   • Many ditches, including most roadside and farm ditches.
   • Prior converted cropland.
   • Waste treatment systems.
3. Implementation Status: As mentioned, the implementation of this rule is currently mixed due to ongoing litigation:
   • In 23 states, plus the District of Columbia and U.S. Territories, the 2023 rule is in effect.
   • In 27 other states, authorities continue to use the pre-2015 regulatory definitions pending further court decisions.
4. Legal and Regulatory Framework: The rule is designed to align with the Supreme Court’s narrower interpretation which limits federal jurisdiction to those waters with a significant nexus to navigable waters.
5. Impact on Regulatory Practices: This revision affects how businesses and landowners manage their land and water resources, particularly concerning permits for development and land use changes.

The practical application of these changes means that permit requirements may vary significantly depending on the state and the nature of the water bodies involved. This complexity underscores the need for ongoing legal guidance and compliance strategies for those affected by these regulations.

For complete details on the regulatory definitions and implications, you can view the official documentation and additional resources provided by the EPA on their WOTUS Rule Information Page.