U.S. Army Corps of Engineers and U.S. EPA issue revised definition of Waters of the United States

On August 29, 2023, the U.S. Army Corps of Engineers and U.S. EPA issued a final rule to amend the “Revised Definition of ‘Waters of the United States’” (2023 WOTUS) rule, published in the Federal Register on January 18, 2023.

The agencies believe the amended rule conforms the definition of “Waters of the United States” to the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. However, there remain outstanding legal challenges to the 2023 WOTUS rule that will prevent it from going into effect in 27 states (see map below and on the EPA website for information purposes only). At this time, it is unclear if legal challenges to the 2023 WOTUS rule will be dropped. 

Two major changes were made under the new rule, including:

  • Clarification that wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways with a relatively permanent water.
  • Removal of the highly debated “significant nexus” test, which was used to determine whether there was a connection between small and large bodies of water.

The amended rule became effective upon publication in the Federal Register on September 8, 2023. You can see the published rule here or download the entire document by clicking the image below.

In the 23 states where the January 2023 Rule is not enjoined, the agencies will implement the January 2023 Rule, as amended by the conforming rule.

Please visit the EPA’s Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. Learn more about the EPA’s current implementation of the definition of “Waters of the United States” here.

Contact Vince Messerly, PE or Greg Snowden, MS, PWS, CERP with questions about how this change may affect your project.