It’s Clear as WOTUS: SCOTUS, Sackett and the “Relatively Permanent” Amended Final Rule from EPA/USACE-It’s Clear as WOTUS SCOTUS, Sackett and the “Relatively Permanent” Amended Final Rule from EPAUSACE Recording

It’s Clear as WOTUS SCOTUS, Sackett and the “Relatively Permanent” Amended Final Rule from EPAUSACE Recording

Video Transcription

Video Summary

In the online presentation titled "It's Clear as WOTUS," environmental consultant Kevin Ramberg provided an in-depth overview of the evolving regulatory landscape surrounding Waters of the United States (WOTUS) under the Clean Water Act. He summarized key legal milestones beginning with the 2006 Supreme Court Rapanos decision, which established the "significant nexus" test for jurisdiction: waters must significantly affect downstream navigable waters to be federally regulated. Ramberg explained how subsequent rulemakings have expanded or contracted the definition of jurisdictional waters—highlighting the 2015 Obama-era Clean Water Rule, the 2020 Trump administration Navigable Waters Protection Rule, and recent Biden administration changes.<br /><br />A significant update arose with the May 2023 Sackett Supreme Court decision, which largely rejected the "significant nexus" test and required a continuous surface water connection for wetlands to be jurisdictional. Following this, the EPA and Army Corps issued a September 2023 conforming rule aligning with this narrower interpretation, dropping coverage for non-relatively permanent and ephemeral streams. However, implementation varies by state, creating a complex regulatory patchwork.<br /><br />Ramberg discussed how to navigate these uncertain, shifting definitions—emphasizing avoidance strategies, engaging agencies for jurisdictional determinations or permits, and utilizing nationwide permits with thresholds to manage costs and schedules. He also stressed the importance of knowing state-specific regulations and monitoring forthcoming guidance and regional tools for delineating jurisdiction. Ultimately, Ramberg advised practitioners to stay informed, engage regulators proactively, and carefully consider project approaches amid this evolving federal and state regulatory environment regarding WOTUS.

Keywords

Waters of the United States

Clean Water Act

significant nexus test

Rapanos decision

Clean Water Rule 2015

Navigable Waters Protection Rule 2020

Sackett Supreme Court decision 2023

EPA and Army Corps regulations

jurisdictional waters