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 Slides

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

Pdf Summary

This presentation by Kevin Ramberg from ACEEC in September 2023 offers a comprehensive overview of the Waters of the United States (WOTUS) regulatory landscape, focusing on definitions, historical shifts, current status, examples, future guidance, and compliance strategies.<br /><br />WOTUS 101 defines key terms including jurisdictional waters, traditionally navigable waters, relatively permanent waters, significant nexus, and ordinary high water mark, all critical in understanding regulatory scope.<br /><br />The regulatory timeline highlights landmark events shaping WOTUS: the 2006 Supreme Court Rapanos decision with varied opinions on “navigable waters” and the “significant nexus” test; the 2015 Obama Clean Water Rule which broadened jurisdiction; Trump’s 2020 Navigable Waters Protection Rule returning to a narrower scope; a 2021 federal judge vacating the Trump rule, reverting to Rapanos; Biden’s 2023 proposed revisions aiming to clarify definitions; and the May 2023 Supreme Court Sackett v. EPA ruling that discarded the significant nexus test except for relatively permanent waters and required a continuous surface connection for adjacent wetlands. Subsequently, the September 2023 EPA/USACE conforming final rule removed the significant nexus and adjacent waters tests, narrowing WOTUS coverage further.<br /><br />Current state-level regulation varies, with some states like Michigan and New Jersey assuming Section 404 authority and others exploring it. Litigation is ongoing across many states, creating a patchwork regulatory environment.<br /><br />Examples illustrate that relatively permanent waters and wetlands with continuous surface connection remain jurisdictional, while ephemeral streams and isolated waters generally are not.<br /><br />Future guidance from EPA/USACE aims to clarify definitions and provide tools like Streamflow Duration Assessment Methods to aid implementation. Public outreach and regional adaptations are anticipated.<br /><br />Compliance strategies include avoidance of WOTUS features, engaging the USACE through permits and approved jurisdictional determinations, and hybrid approaches combining delineation with mitigation. Nationwide permits remain critical for project approvals.<br /><br />In conclusion, post-September 2023 WOTUS jurisdiction is narrower with significant state-by-state variability. Continued engagement with evolving guidance and legal updates is essential given uncertainties surrounding relatively permanent waters and continuous surface connections.

Keywords

Waters of the United States

WOTUS

Kevin Ramberg

ACEC

regulatory landscape

jurisdictional waters

significant nexus

Supreme Court Rapanos decision

EPA/USACE final rule

compliance strategies