The Environmental Protection Agency (EPA) released the final Clean Water Act (CWA) rule (New Rule) to comply with the US Supreme Court decision in Sackett v. EPA, 598 U.S. _, 143 S. Ct. 1322 (2023) (“Sackett”). This is a pre-publication version submitted for publication in the Federal Register.
The New Rule is an emergency rule implemented to conform the prior “Revised Definition of ‘Waters of the United States’” published in January 2023 (2023 Rule) with the Sackett decision. Because it is mandated by the US Supreme Court, the administrative procedures for rule development were not followed and the New Rule goes into immediate effect.
Essentially, the New Rule makes six substantive changes to the Code of Federal Regulations sections of the 2023 Rule that address two primary issues of the 2023 Rule stricken by the Court in Sackett:
- Removes references to “significant nexus” as a means of determining Waters of the United States (WOTUS). WOTUS must now be “relatively permanent, standing or continuously flowing bodies of water”; and
- Revises definition of jurisdictional streams and adjacent wetlands as it now requires a “continuous surface connection” to a WOTUS for these bodies of water to be jurisdictional.
In Florida, the FDEP determines federal jurisdiction of WOTUS water bodies and impacts to adjacent wetlands through its 404 permitting program, which has different standards than the 2023 Rule or New Rule. Whether the FDEP will revise its rule in response to the Sackett decision has not been determined.
