The U.S. Army Corps of Engineers (“Corps”) and the U.S. Environmental Protection Agency (“EPA”) have adopted a final rule re-defining the scope of the “waters of the United States” (“WOTUS Final Rule”) subject to federal regulations pursuant to the Clean Water Act. The WOTUS Final Rule represents a return to the pre-2015 WOTUS definition, and therefore a re-expansion of federal jurisdiction over certain water bodies and wetlands previously exempt pursuant to the 2020 Navigable Waters Protection Rule (NWPR).

The WOTUS Final Rule is the culmination of a long-anticipated effort to define the geographic reach of the Corps and EPA’s regulatory authority over streams, wetlands, water bodies and other water features pursuant to the Clean Water Act. The WOTUS Final Rule replaces the 2020 NWPR, which was set aside in 2021 after numerous court challenges.

The WOTUS Final Rule heavily relies on the legal standards set forth in the U.S. Supreme Court’s decision in Rapanos vs. United States. Pursuant to this ruling, the Corps and EPA were given two different standards to choose from to establish the scope of wetlands and water bodies subject to the Clean Water Act’s statutory scheme: the “significant nexus” standard expounded on by Justice Anthony Kennedy’s concurring opinion in Rapanos; and the “relatively permanent” standard set forth in Rapanos’ plurality opinion penned by Justice Antonin Scalia which required a permanent, continuous hydrologic connection to navigable waters and thereby excluded channels and ditches in which water flows only intermittently or ephemerally.

The WOTUS Final Rule chooses to set the scope of the agencies’ jurisdictional authority pursuant to both standards outlined by Justices Kennedy and Scalia in the Rapanos decision. However, the WOTUS Final Rule ignores the fact that the U.S. Supreme Court is presently considering the legality of the “significant nexus” standard in Sackett v. EPA, Docket No. 21-454, which was argued on October 3, 2022, and awaiting a final decision.

On the day the WOTUS Final Rule was published in the Federal Register, the State of Texas and a coalition of 17 industry groups, led by the American Farm Bureau Federation, filed separate lawsuits in the U.S. District Court for the Southern District of Texas challenging the rulemaking. In light of both the pending federal litigation and the Supreme Court’s decision in Sackett v. EPA, there are serious questions as to how long the WOTUS Final Rule may remain. Consequently, there continues to be significant uncertainty as to the Corps and EPA’s regulatory authority over wetlands and water bodies.