WOTUS Is Redefined by the Biden Administration-WOTUS Is Redefined by the Biden Administration Slides

WOTUS Is Redefined by the Biden Administration Slides

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This document summarizes a webinar by Venable LLP concerning the 2023 revision of the "Waters of the United States" (WOTUS) definition under the Clean Water Act. It focuses on new regulatory implications for engineering firms involved in WOTUS determinations, detailing changes from prior rules and key terminology.<br /><br />The history of WOTUS is traced from initial Corps definitions in 1986 through various Supreme Court rulings (e.g., Riverside Bayview, SWANCC, Rapanos), several administrations' regulatory shifts, culminating in the Biden Administration's 2023 rule effective March 20, 2023.<br /><br />The 2023 WOTUS rule establishes five categories of jurisdictional waters: traditional navigable waters; impoundments; tributaries that meet relatively permanent flow or significant nexus standards; wetlands adjacent to or connected with these waters; and certain intrastate waters meeting those standards.<br /><br />Key changes include a refined definition of "adjacent wetlands" as bordering or neighboring waters separated by certain natural or man-made barriers, removing broader territory-based adjacency from the 2015 Obama Clean Water Rule. The term "relatively permanent" is addressed via preamble but not codified, aligning with the Rapanos plurality test. The "significant nexus" concept follows Justice Kennedy’s Rapanos test but omits certain Obama-era language.<br /><br />The rule specifies criteria for tributaries, wetlands, and intrastate waters, emphasizing hydrologic connectivity, surface connections, and case-specific analyses for nexus determination. Several longstanding exclusions remain, such as waste treatment systems, prior converted cropland, certain ditches, artificial waters used for agriculture or aesthetic purposes, and low-flow erosional features.<br /><br />The document highlights ongoing legal challenges to the rule by Texas and the American Farm Bureau, citing claims that the rule exceeds statutory authority, infringes state sovereignty, and is impermissibly vague. The pending Supreme Court case Sackett v. EPA, which questions adjacency and connectivity standards, may impact future interpretations.<br /><br />In summary, the 2023 WOTUS definition refines regulatory scope, emphasizing hydrologic and ecological connections while continuing contentious debates over federal jurisdictional reach under the Clean Water Act. The webinar aims to clarify these nuances for practitioners navigating permitting and compliance.

Keywords

Waters of the United States

WOTUS 2023 rule

Clean Water Act

jurisdictional waters

adjacent wetlands definition

significant nexus

hydrologic connectivity

Rapanos test

legal challenges to WOTUS

Sackett v. EPA