Amended WOTUS Rule Announced

How Does It Impact Industry & the Environment?

If you work in real estate or development, you're likely aware of May’s Supreme Court (SCOTUS) ruling in Sackett v. EPA, limiting federal authority over wetlands under the Clean Water Act (CWA), and you’ve been waiting to find out exactly how this decision will actually impact the Waters of the United States (WOTUS) rule.

As of last week, we have some answers . . . even if they may not be final answers because the legal battles are likely to continue.

Background

In January of 2023, the Environmental Protection Agency (EPA) and the United States Army Corp of Engineers (USACE) published a revised definition of the WOTUS rule in the Federal Register. However, in its May 2023 decision on Sackett, the SCOTUS held that the CWA only extends to:

wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, 33 U.S.C. § 1362(7) — making it difficult to determine where the water ends and the wetland begins.