Key Points

• The US Army Corps of Engineers and the US EPA finalized a new definition of “waters of the United States,” or WOTUS, which will go into effect March 20, 2023.
• This new WOTUS definition expands federal jurisdiction over waters within states; however, the Supreme Court’s expected decision in Sackett may impose another definition soon.
• Given California’s existing regulation of wetlands and other “waters of the State,” the new WOTUS definition’s impact in California is limited, including potentially expanding waters subject to citizen suits and federal permitting requirements.

---

On January 18, 2023, the US Environmental Protection Agency and the US Army Corps of Engineers finalized a new definition of “waters of the United States,” or WOTUS, that will go into effect on March 20, 2023. WOTUS determines the jurisdictional reach of the federal Clean Water Act, under which proponents of projects involving construction in or near wetlands or regulated waters must obtain a permit. The Obama and Trump administrations spent a decade playing regulatory volleyball over the definition of the notoriously uncertain WOTUS. The Biden Administration’s new definition tries to end that tradition by taking something from both of the prior administrations: the new definition extends to "relatively permanent, standing, or flowing bodies of water,” and those waters with some “significant nexus” to traditionally navigable waters.

The Biden Administration’s effort, however, may not be the final word. The meaning of WOTUS and the “significant nexus” standard are before the US Supreme Court in the case, Sackett v. EPA. As we have previously reported, the Ninth Circuit upheld and applied the “significant nexus” test in determining whether certain wetlands in Idaho required a federal permit under the Clean Water Act. Whether the Supreme Court rejects or clarifies the “significant nexus” standard may foreshadow whether the Biden Administration’s WOTUS definition will last.

But until the Supreme Court decides Sackett (or barring some nationwide injunction while the Biden Administration’s definition winds its way through legal challenges), project proponents in California will follow both the “relatively permanent” and “significant nexus” tests for Clean Water Act permitting. This change’s impact is not as significant as it may be in other states, however. California recently expanded its regulation of wetlands through the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State. That expansion leaves few, if any, waters in California unregulated, regardless of the ebb and flow of federal jurisdiction.

Still, this recent change in the federal jurisdictional reach is important for two reasons. First, the change impacts when you must seek a federal permit or a state permit (or both) for projects involving wetlands or other waters. Second, the change expands what waters may be the subject of a citizen suit under the Clean Water Act. While both the federal government and California regulate water quality under similar laws, only the federal Clean Water Act contains a citizen suit provision, including the recovery of attorneys’ fees. As federal jurisdiction expands, so too does the authority for bringing private lawsuits for alleged violations of the Clean Water Act.

However long the Biden Administration’s definition lasts, complexities and uncertainties over wetlands regulations will remain. Be sure to stay apprised as these laws change. And should you have any questions or concerns about how these laws affect you, contact our Water Law attorneys.