The EPA and the Army Corps of Engineers are planning to issue a rule narrowing the definition of “Waters of the United States” (WOTUS) to conform to the Supreme Court’s Sackett Ruling.

Both agencies have suspended issuance of approved jurisdictional determinations (AJD) pending revised rules to reflect the Supreme Court’s decision. The Supreme Court’s May 25 decision significantly narrowed the scope of wetlands covered by the Clean Water Act to only those that are “indistinguishable” from adjacent, jurisdictional water bodies based on a “relatively permanent” surface-water connection.

In addition to suspending the issuance of AJDs, the EPA has sought to pause ongoing litigation over wetland issues pending the rule making process. At least one Circuit, the Sixth Circuit, has granted the EPA’s Motion seeking abeyance of ongoing litigation – appearing to agree with the EPA’s argument that the upcoming WOTUS Rule would help narrow any future litigation.