“Waters of the United States:” Final Rule Announced

Sackett v. EPA

In a previous blog, Walden discussed the Supreme Court of the United States (SCOTUS) ruling on Sackett v. EPA, where Idaho homeowners, the Sacketts, opposed the United States Environmental Protection Agency (EPA). The Sacketts were previously developing a piece of land in Idaho when the EPA halted the job due to its “connection” to a federally protected wetland. The Sacketts took legal action against the EPA in hopes of resuming the land development, and their case eventually made it to the SCOTUS where the court ruled in favor of the Sacketts on May 25, 2023.

The focal point of the court case was the effective definition of the term “Waters of the United States” (WOTUS) and what constituted a “connection” to a federally protected wetland per the Clean Water Act of 1972 (CWA). WOTUS is not explicitly defined within the CWA; however, Rapanos v. United States (2006) ruled that WOTUS must have a continuous or otherwise significant surface connection to navigable waters. The matter at hand was whether the EPA had the authority to halt construction on a specific piece of land given their interpretation on what constitutes a connection to WOTUS; the Sacketts did not feel that their property had a significant surface connection to WOTUS.

The Final Rule

On August 29, 2023, the EPA announced a final rule which amended the 2023 definition of WOTUS to align with the recent SCOTUS decision, which became effective on September 8, 2023. Following the announcement, EPA Administrator Michael S. Regan issued a statement lamenting the consequences of the rule while assuring that the EPA will do what it can to protect WOTUS under its current authority, while working closely with State, Tribal, and local partners. As a result of this rule, the Army Corps of Engineers may resume in its duties to issue jurisdictional determinations immediately. According to The Wildlife Society, this rule will remove protections previously in place on approximately 63% of the United States’ Wetlands.

As environmental experts, Walden has worked on a breadth of projects where wetland protection is a focal point and therefore must be accounted for in both project design and construction execution. If you are unsure how wetland protection may figure into your next project, give Walden a call today at 516-559-6976.