Key Points

• The US EPA and US Army Corps of Engineers announced a final rule eliminating the “significant nexus” test used to define the Clean Water Act’s “waters of the United States,” which the Supreme Court recently invalidated in Sackett v. EPA.
• The new rule attempts to comply with Sackett by extending federal jurisdiction under the Clean Water Act only to wetlands that share a “continuous surface connection” with jurisdictional waters.
• While this rule narrows the scope of federal regulation, California’s existing wetland regulations remain, limiting the impact of this decision for the state.

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The Clean Water Act’s definition of “waters of the United States,” or WOTUS, has seen considerable changes over the past few administrations. As we reported, the Biden Administration promulgated a rule in January that redefined WOTUS, which the Supreme Court upset with its decision in Sackett v. EPA. Given that decision, the US Environmental Protection Agency and the US Army Corps of Engineers announced a new rule on August 29th that further amends the definition of WOTUS to conform with the Sackett decision. The new rule goes into effect September 8th.

The new rule eliminates the “significant nexus” test from the regulations and revises the “adjacency” test used to identify federally jurisdictional wetlands. Previously, a wetland was considered “adjacent” if it was “bordering, contiguous, or neighboring … [or] separated from other ‘waters of the United States’ by man-made dikes or barriers.” Now, a wetland must “have a continuous surface connection” with other jurisdictional waters. The rule also removes “interstate wetlands” from the list of WOTUS categories, and removes streams and wetlands from the jurisdictional category of “Additional Waters.” The EPA’s fact sheet provides more details on these changes.

The agencies issued the final rule using the Administrative Procedure Act’s “good cause” authority, which allows officials to enact rules without public notice-and-comment when the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.” The final rule states that “good cause” was justified because the amendment only conforms the final rule to Sackett.

Given the litigation history over the Clean Water Act’s jurisdiction, this new rule is likely to be challenged. Whatever the outcome of that anticipated litigation, the rule’s impact in California will be more muted than elsewhere. Under the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, few if any waters in California are unregulated. So while the Biden Administration’s rule will narrow federal jurisdiction, project proponents may still need to obtain California-issued permits. 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.