On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. The amendments conform with the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. That decision, made certain parts of the January 2023 Rule invalid. Therefore, the agencies have amended key components of the regulatory text to conform it to the Supreme Court decision.
For example, the rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category.
The amendments to the January 2023 Rule do not change the eight exclusions from the definition of “waters of the United States”. The exclusions are:
- Prior converted cropland, adopting USDA’s definition and generally excluding wetlands that were converted to cropland prior to December 23, 1985.
- Waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.
- Ditches (including roadside ditches), excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water.
- Artificially irrigated areas, that would revert to dry land if the irrigation ceased.
- Artificial lakes or ponds, created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.
- Artificial reflecting pools or swimming pools, and other small ornamental bodies of water created by excavating or diking dry land.
- Waterfilled depressions, created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of “waters of the United States.”
- Swales and erosional features (e.g., gullies, small washes), that are characterized by low volume, infrequent, or short duration flow.
Additionally, the agencies’ amended definition of “waters of the United States” does not affect the longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act.
The conforming rule will become effective upon publication in the Federal Register.
The agencies are hosting a public webinar to provide updates on the definition of “waters of the United States” on September 12, 2023, from 3pm-4pm Eastern Time.
Note that registration capacity is limited, but the webinar will be recorded and posted on EPA’s website after the event.